S260 CONGRESSIONAL RECORD — SENATE January 30, 2006 In the recent past, Republican Presi- The ACTING PRESIDENT pro tem- ous as they were in the earlier part of dents have made 15 of the last 17 nomi- pore. Under the previous order, the the last century, but they are still out nations to the Supreme Court. time from 10 to 11 shall be under the there. They are evident. All of us at The Republican stamp on the current control of the Democratic side. one time or another still see them. It is Court is undeniable, and clearly the The Chair recognizes the Senator not limited to a region of the Nation. prospects of the Court becoming more from Massachusetts. It exists in my part of the country as moderate in the near future are un- Mr. KENNEDY. Mr. President, today well. likely. at 4:30, Members of this body will be The question is, Are we moving for- Upon this backdrop, I have evaluated casting an extremely important vote, ward to knock down the walls of dis- the decisions and writings of Judge the implications of which are going to crimination? That has always been a Alito, closely watched the nomination be felt not only in the next several pretty basic test for me in terms of hearing in the Senate Judiciary Com- months but for a great number of reaching a judgment on the Supreme mittee, and listened to the statements years, not only for this generation but Court. of many colleagues on his nomination. for the next generation and the fol- I remember the case of Tennessee v. I have come away from this review lowing. It is on a nomination for the Lane that was decided not long ago. It with a number of concerns. Supreme Court of the United States involved a woman in a wheelchair, a First, Judge Alito did not provide and whether we are going to move single mom with two children, trained complete answers on many important ahead and have a final vote tomorrow. as a court reporter. The State was Ten- topics the way now Chief Justice Rob- There is nothing more important nessee. About 60 percent of all the erts did during his nomination hearing. than the votes we cast on nominations courtrooms in Tennessee for some rea- These included many critical issues to the Supreme Court, except sending son are on the second floor. The ques- such as: Is Roe settled law? What are young Americans to war. The implica- tion involved the Americans with Dis- the limits of the executive branch’s tions of this vote are far reaching. As abilities Act. I welcomed the oppor- power? one who has followed the courts of this tunity to work closely with my col- Second, Judge Alito failed to dis- country as they moved us to a fairer league from Iowa, Senator HARKIN, on tance himself from the radical views he and more just nation, this nomination that program. By the time we came to expressed in his earlier writings on the has enormous consequences and impor- the floor, we had bipartisan support for supremacy of executive power. tance. I doubt if we will cast another that legislation. President Bush 1 indi- Third, Judge Alito’s record includes such vote, unless it would be for a Su- cated it was the piece of legislation of troubling decisions on vital issues such preme Court nominee, any time in the which he was most proud. It wasn’t al- as search and seizure, reproductive near future. ways easy in terms of dealing with the rights, the power of Congress, civil I remember the beginning of the disabled. rights, and affirmative action. great march towards progress this Na- I can remember when we had 4 mil- Because of these facts, I have con- tion made with the Fifth Circuit in the lion children who were kept in closets cluded that the addition of Judge Alito 1950s, the great heroes, Judge Wisdom, rather than being able to go to school. to the Supreme Court would unaccept- Judge Tuttle, Judge Johnson, and We had bipartisanship on the IDEA, ably shift the balance of the Court on many others who awakened the Nation the Individuals with Disabilities Edu- many critical questions facing our to its greatness in terms of having cation Act, and we made enormous county, such as: America be America by knocking down progress during that time. Are there limits on the power of the walls of discrimination and prejudice. Then we had Tennessee v. Lane. The presidency? Our Founding Fathers didn’t get it question was whether that courthouse Can the Congress regulate the activi- right on that as we know. They effec- was going to make reasonable accom- ties of the states? tively wrote slavery into the Constitu- modations to let that single mother, How expansive is the right to pri- tion. We fought a Civil War that didn’t who was trained as a court reporter, vacy? resolve it or solve it. Though, obvi- avoid being carried up a flight of stairs, What deference should be given to ously, with President Lincoln and avoid being carried into the ladies legislative acts of the Congress? other extraordinary leaders, we began room, avoid other humiliating cir- How the Court addresses these ques- to move the process forward to knock cumstances because of her disability, tions goes to the heart of what we down the walls of discrimination. was that courthouse going to have to stand for as a country, which is why It was really as a result of the ex- make those reasonable accommoda- this nomination is so important. traordinary leadership of Dr. King, his tions. While many of my colleagues will allies and associates in the late 1950s, Four Justices on the Supreme Court disagree with my assessment of Judge that America began to think about said no, no, we don’t have to make Alito, this will be a lifetime appoint- what this country was all about, recog- those accommodations. But five said ment and a lifetime is too long to be nizing the stains of discrimination. We yes. Sandra Day O’Connor said yes on wrong. had the beginning of the movement to that and they made those accommoda- I yield the floor. knock down the walls of discrimination tions. That mother was able to gain en- in the Public Accommodation Act of trance into the courthouse and has had f 1964, the Voting Rights Act of 1965, the a successful career. She appeared be- EXECUTIVE SESSION Civil Rights Act of 1967, housing in fore our committee with tears in her 1968, title XIV in 1973. In 1965, we eyes. If that decision had gone 5 to 4 knocked down the walls of discrimina- the other way, all 50 States would have NOMINATION OF SAMUEL A. tion in our immigration laws, the na- had to have passed disability rights ALITO, JR., TO BE AN ASSO- tional origin quota system. The Asian- acts—not the Americans With Dis- CIATE JUSTICE OF THE SU- Pacific triangle discriminated against ability Act, but a Massachusetts dis- PREME COURT OF THE UNITED Asians. The national origin quota sys- abilities act, or Connecticut, or Rhode STATES tem discriminated against groups of Island. But we had the Americans With The ACTING PRESIDENT pro tem- countries. Disabilities Act, so 42 million fellow pore. Under the previous order, the We have made enormous progress, citizens with physical and mental dis- Senate will proceed to executive ses- not that laws themselves are going to abilities are now part of the American sion and resume consideration of Cal- solve these problems. We had laws that family today. Just as we have knocked endar No. 490, which the clerk will re- were passed, supported by Democrats down the walls of discrimination on port. and Republicans during this time, and race, religion, ethnicity, and gender, The assistant legislative clerk read we became a fairer and more just na- we have done so with disability. We the nomination of Samuel A. Alito, Jr., tion. Still there are important areas we have also made some progress in terms of New Jersey, to be an Associate Jus- have to move toward to complete the of gay and lesbian issues as well. tice of the Supreme Court of the march. The stains of discrimination We have made this march toward United States. are still out there, not nearly as obvi- progress. The question is whether we

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00002 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.002 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S261 are going to have a justice who believes the rest. All of those issues went right thing those of us on Judiciary Com- in that march of progress, or whether out the window when Harriet Miers was mittee had no mind of. Maybe our we are going to have somebody who is nominated. The reason was because friends on the other side knew about it. going to be a roadblock in that march Harriet Miers didn’t pass a litmus test. But this is on the front page of the New toward progress. I express my opposi- Now we have Judge Alito. Before the York Times: Paving the Way For Alito tion to Judge Alito because I think he announcement ended, we see this ex- Began In Reagan Era. is the wrong judge at the wrong time traordinary wave of favorability that It goes on extensively, continuing on on the wrong court. I don’t believe he has come over in terms of support for page A18. I ask unanimous consent that is going to be part of the whole move- this nominee. I wonder how people the article be printed in the RECORD. ment and march toward progress in could be so opposed to Harriet Miers There being no objection, the mate- this country. It is a delicate balance. and, as soon as Judge Alito was an- rial was ordered to be printed in the We have seen at times in American his- nounced, how they could be so over- RECORD, as follows: tory where Executives have led the whelmingly for him. What did they IN ALITO, G.O.P. REAPS HARVEST PLANTED IN way in making this a fairer country know? Who knew? ’82 and where Congress has led the way One of the things I think of is what (By David D. Kirkpatrick) and, certainly, we have seen that with our Founding Fathers wanted. What Last February, as rumors swirled about Executive power in terms of the adop- did the Constitution say on this issue? the failing health of Chief Justice William H. tion of the Medicare Programs and The Founding Fathers, in debating the Rehnquist, a team of conservative grass- Medicaid. We had Presidential leader- Constitution, considered the issue of roots organizers, public relations specialists ship for a while in the early sixties, appointment of judges four different and legal strategists met to prepare a battle and finally we passed those. As a re- plan to ensure any vacancies were filled by times. On three occasions they gave all likeminded jurists. sult, we are a fairer country. Ask our the authority to this body here, the elderly people if we didn’t have the The team recruited conservative lawyers Senate, to recommend and appoint. to study the records of 18 potential nominees Medicare or the Social Security pro- The last important decision at the Con- including Judges John G. Roberts Jr. and grams where we would be as a nation. stitutional Convention—10 days before Samuel A. Alito Jr.—and trained more than That is the issue. the end—was to share the power, with three dozen lawyers across the country to re- I accepted the challenge of Judge the Executive having the power to ap- spond to news reports on the president’s Alito, who said, let’s read my cases. I point and the Senate having the power eventual pick. am reminded of the fact that to under- ‘‘We boxed them in,’’ one lawyer present to give advice and consent. You cannot stand a nominee, one has to read their during the strategy meetings said with pride read the debates, which I have read, dissenting opinions. Ruth Bader Gins- in an interview over the weekend. This law- and not understand that it was a burg and Robert Bork agreed 91 percent yer and others present who described the shared responsibility—not this idea meeting were granted anonymity because of the time. Isn’t that extraordinary that the Senate is supposed to be a the meetings were confidential and because about two individuals with dramati- rubberstamp. I know it suits their in- the team had told its allies not to exult pub- cally different judicial philosophies? terests, but our Founding Fathers licly until the confirmation vote was cast. They agreed 91 percent of the time. Now, on the eve of what is expected to be Where you found their differences were wanted the shared responsibility. Re- the Senate confirmation of Judge Alito to in their dissents. member the checks and balances, the the Supreme Court, coming four months That is where I looked with regard to essential aspect of the Constitution of after Chief Justice Roberts was installed, this nominee. That is why I came to the United States? When they give au- those planners stand on the brink of a water- thority and power in one place, they shed for the conservative movement. the conclusion this nominee was not In 1982, the year after Mr. Alito first joined going to be friendly to the average give authority and power to the other—the Commander in Chief, Execu- the Reagan administration, that movement worker, friendly on women’s rights, was little more than the handful of legal friendly on the issues of race, friendly tive, making of war; with the Congress, scholars who gathered at Yale for the first on the issues of the environment, and the power of the purse, and the rest of meeting of the Federalist Society, a newly would no doubt be willing to accede to the issues we all are familiar with. formed conservative legal group. a more expansive Executive power. This is a shared responsibility, and Judge Alito’s ascent to join Chief Justice I remember the time when the Presi- we in this Senate have a very impor- Roberts on the court ‘‘would have been be- dent announced the nomination of tant constitutional obligation to re- yond our best expectations,’’ said Spencer Abraham, one of the society’s founders, a Judge Alito. It was in the early morn- view the recommendation. The real question for us now when we have a former Secretary of Energy under President ing. I happened to be up in Massachu- Bush and now the chairman of the Com- setts and I knew the announcement nominee is to find out—not for our- mittee for Justice, one of many conservative would be made. I didn’t know Judge selves, but as instruments for the organizations set up to support judicial Alito. Certainly the representation was American people—what the beliefs of nominees. that there is a wide open kind of net this nominee are; what are the real be- He added, ‘‘I don’t think we would have put that has been spread out across the liefs are of the nominee for the Su- a lot of money on it in a friendly wager.’’ country to try to find the very best in preme Court of the United States; do Judge Alito’s confirmation is also the cul- we have the assurances that this indi- mination of a disciplined campaign begun by our Nation who would be a good nomi- the Reagan administration to seed the lower nee. I have voted for seven Republican vidual is the best of the best. We have federal judiciary with like-minded jurists nominees for the Supreme Court. We seen that. President Reagan gave us who could reorient the federal courts toward have had a great many of those nomi- Sandra Day O’Connor, who was the a view of the Constitution much closer to its nees who were virtually unanimous in best of the best. The list went on. We 18th-century authors’ intent, including a this body—Democrats and Republicans have had extraordinary jurists in the much less expansive view of its application voting together for nominees—and that past. to individual rights and federal power. It was is what I think all of us were hoping We approached this to try to find out a philosophy promulgated by Edwin Meese for. We had seen the fiasco that had these things on the Judiciary Com- III, attorney general in the Reagan adminis- mittee. We have a pretty good sense tration, that became the gospel of the Fed- taken place with Harriet Miers. We saw eralist Society and the nascent conservative groups in this country that were pre- that the executive branch knows the legal movement. pared to exercise a veto. We have seen philosophy of this nominee. They have Both Mr. Roberts and Mr. Alito were groups in our Nation that were pre- made the recommendation and obvi- among the cadre of young conservative law- pared to exercise a litmus test. We ously they have inquired of this nomi- yers attracted to the Reagan administra- have seen groups that have said abso- nee, so they know where he is. tion’s Justice Department. And both ad- lutely, no, we are not going to have I was absolutely startled this morn- vanced to the pool of promising young ju- Harriet Miers. These are the same ing when I picked up the New York rists whom strategists like C. Boyden Gray, Times and saw in Mr. Kirkpatrick’s ar- White House counsel in the first Bush admin- groups that indicated for so long that istration and an adviser to the current White nominees are entitled to a vote up or ticle on the front page exactly how this House, sought to place throughout the fed- down. nominee was selected, who selected eral judiciary to groom for the highest court. We ought to be able to look at a him, and what the process was. All dur- ‘‘It is a Reagan personnel officer’s dream nominee’s judicial philosophy and all ing this period of time, that was some- come true,’’ said Douglas W. Kmiec, a law

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00003 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.004 S30JAPT1 ycherry on PROD1PC64 with SENATE S262 CONGRESSIONAL RECORD — SENATE January 30, 2006 professor at Pepperdine University who nees and to make sure they all stuck to the side of the story. Most of us certainly worked with Mr. Alito and Mr. Roberts in same message. They fine-tuned their strat- believed it. Well, this is the story. This the Reagan administration. ‘‘It is a gradua- egy for Judge Alito when he was nominated may be accurate and it may not be. I tion. These individuals have been in study in October by recruiting Italian-American think it is very difficult to read this and preparation for these roles all their pro- groups to protest the use of the nickname fessional lives.’’ ‘‘Scalito,’’ which would have linked him to story and not certainly find a very As each progressed in legal stature, others the conservative Justice Antonin Scalia. powerful ring of truth in it: were laying the infrastructure of the move- In November, some Democrats believed Last February, as rumors swirled about ment. After the 1987 defeat of the Supreme they had a chance to defeat the nomination the failing health of Chief Justice William H. Court nomination of Judge Robert H. Bork after the disclosure of a 1985 memorandum Rehnquist, a team of conservative grassroots conservatives vowed to build a counter- Judge Alito wrote in the Reagan administra- organizers, public relations specialists, and weight to the liberal forces that had mobi- tion about his conservative legal views on legal strategists met to prepare a battle plan lized to stop him. abortion, affirmative action and other sub- to ensure any vacancies were filled by like- With grants from major conservative do- jects. minded jurists. nors like the John M. Olin Foundation, the ‘‘It was a done deal,’’ one of the Demo- So the right wing had a plan. They Federalist Society functioned as a kind of cratic staff members of the Senate Judiciary shadow conservative bar association, plant- Committee said, speaking on the condition knew what the thinking of the nominee ing chapters in law schools around the coun- of anonymity because the staff is forbidden was. The article continues: try that served as a pipeline to prestigious to talk publicly about internal meetings. The team recruited conservative lawyers judicial clerkships. ‘‘This was the most evidence we have ever to study the records of 18 potential nomi- During their narrow and politically costly had about a Supreme Court nominee’s true nees—including Judges John G. Roberts and victory in the 1991 confirmation of Justice beliefs.’’ Samuel A. Alito—and trained more than Clarence Thomas, the Federalist Society Mr. Leo and other lawyers supporting three dozen lawyers across the country to re- lawyers forged new ties with the increas- Judge Alito were inclined to shrug off the spond to news reports on the President’s ingly sophisticated network of grass-roots memorandum, which described views that eventual pick. conservative Christian groups like Focus on were typical in their circles, people involved So members of the right wing are the Family in Colorado Springs and the in the effort said. But executives at Creative going to make the pick and we see American Family Association in Tupelo, Response Concepts, the team’s public rela- Miss. Many conservative Christian pastors tions firm, quickly convinced them it was ‘‘a around the country where dozens of and broadcasters had railed for decades big deal’’ that could become the centerpiece lawyers are going to respond to the against Supreme Court decisions that out- of the Democrats’ attacks, one of the people news reports. It continues: lawed school prayer and endorsed abortion said. ‘‘We boxed them in’’ ... rights. ‘‘The call came in right away,’’ said Jay Boxed whom in? They boxed in the During the Clinton administration, Fed- Sekulow, chief counsel of the American Cen- eralist Society members and allies had come ter for Law and Justice and another lawyer American people. That is what they are to dominate the membership and staff of the on the Alito team. saying proudly—‘‘we boxed them in,’’ Judiciary Committee, which turned back Responding to Mr. Alito’s 1985 statement one lawyer present during the strategy many of the administration’s nominees. that he disagreed strongly with the abortion- meetings said with pride in an inter- ‘‘There was a Republican majority of the rights precedents, for example, ‘‘The answer view over the weekend. Senate, and it tempered the nature of the was, ‘Of course he was opposed to abortion,’’’ Boxed whom in? This is a nomination nominations being made,’’ said Mr. Abra- Mr. Sekulow said. ‘‘He worked for the for the Supreme Court of the United ham, the Federalist Society founder who was Reagan administration, he was a lawyer rep- States. This is supposed to represent a senator on the Judiciary Committee at the resenting a client, and it may well have re- time. flected his personal beliefs. But look what he all of the people, all Americans. No, no, By 2000, the decades of organizing and bat- has done as judge.’’ they boxed them in, a lawyer present tles had fueled a deep demand in the Repub- His supporters deluged news organizations at the strategy meeting said with lican base for change on the court. Mr. Bush with phone calls, press releases and lawyers pride. tapped into that demand by promising to to interview, all noting that on the United This lawyer and others present who name jurists in the mold of conservative Jus- States Court of Appeals for the Third Cir- described the meeting were granted an- tices Thomas and Scalia. cuit, Judge Alito had voted to uphold and to onymity because the meetings were When Mr. Bush named Harriet E. Miers, strike down abortion restrictions. the White House counsel, as the successor to Democrats contended that those argu- confidential and because the team had Justice O’Connor, he faced a revolt from his ments were irrelevant because on the lower told its allies not to exult publicly conservative base, which complained about court Judge Alito was bound by Supreme until the confirmation vote was cast. her dearth of qualifications and ideological Court precedent, whereas as a justice he There it is. They can hardly wait. Al- bona fides. could vote to overturn any precedents with though I was surprised that—and this ‘‘It was a striking example of the grass which he disagreed. would be my 23rd Supreme Court nomi- roots having strong opinions that ran By last week it was clear that the judge nee—the nominee was up in the Capitol counter to the party leaders about what was had enough votes to win confirmation. And last week thanking Senators for their attainable,’’ said Stephen G. Calabresi, a law the last gasp of resistance came in a Demo- professor at Northwestern University and cratic caucus meeting on Wednesday when support and receiving congratulations another founding member of the Federalist Senator Edward M. Kennedy, joined by Sen- prior to the time we even vote on him. Society. ator John Kerry, both of Massachusetts, un- It has been debated for less than a But in October, when President Bush with- successfully tried to persuade the party to week on the floor of the Senate. Twen- drew Ms. Miers’s nomination and named organize a filibuster. ty-five Senators from our side have Judge Alito, the same network quickly mo- No one defended Judge Alito or argued spoken. Only half of our caucus had a bilized behind him. that he did not warrant opposition, Mr. Ken- Conservatives had begun planning for a chance to speak. They will not speak nedy said in an interview. Instead, opponents now if we cut it off. They have not had nomination fight as long ago as that Feb- of the filibuster argued about the political ruary meeting, which was led by Leonard A. cost of being accused of obstructionism by a chance to talk. Again, the article Leo, executive vice president of the Fed- conservatives. says: eralist Society and informal adviser to the Still, on the brink of this victory, some in . . . The team had told its allies not to White House, Mr. Meese and Mr. Gray. the conservative movement say the battle exult publicly until the confirmation vote They laid out a two-part strategy to roll over the court has just begun. Justice O’Con- was cast. out behind whomever the president picked, nor was the swing vote on many issues, but Then they will pop the champagne people present said. The plan: first, extol the replacing her with a more dependable con- nonpartisan legal credentials of the nomi- servative would bring that faction of the and say we pulled one over on you. And nee, steering the debate away from the nomi- court at most to four justices, not five, and it continues: nee’s possible influence over hot-button thus not enough to truly reshape the court They laid out a two-part strategy to roll issues. Second, attack the liberal groups or overturn precedents like those upholding out behind whomever the President picked, they expected to oppose any Bush nominee. abortion rights. people present said. The plan: first extol the The team worked through a newly formed ‘‘It has been a long time coming,’’ Judge nonpartisan legal credentials of the nominee group, the Judicial Confirmation Network, Bork said, ‘‘but more needs to be done.’’ ... to coordinate grass-roots pressure on Demo- cratic senators from conservative states. Mr. KENNEDY. Mr. President, Amer- They don’t even know who the nomi- And they stayed in constant contact with ica is listening to the President. He nee is going to be yet, but they have scores of conservative groups around the said: We are going to get the very best the plan to extol the nonpartisan legal country to brief them about potential nomi- nominee we possibly can. That is one credentials.

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00004 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.001 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S263 . . . steering the debate away from the look them up on the Web, right above find out. Let’s have a chance to go nominee’s possible influence over hot-button the Alito confirmation hearings is the through these cases and this nominee. issues. Second, attack the liberal groups Swift Boat Veterans for Truth—Swift We know that the right wing now has they expect to oppose any Bush nominee. Boat Veterans for Truth, the ones who its campaign in full gear. Their mission There it is, that is the strategy. It is made the distortions and misrepresen- is to cover up the truth. So we do need not that we are going to nominate the tations about my colleague and friend, a full debate to bring out the truth on best possible nominee and that we are JOHN KERRY, and his war record. They Judge Alito’s record. What is wrong going to work with Republicans and distorted and misrepresented it. They with debate? Are they afraid of what Democrats alike to make sure the are now advertising the Alito con- Americans would do if they really American people understand how this firmation hearings. They say, Let us heard the full record? That is what the nominee is going to protect your con- get in it, and into it they go. issue is, and that is why people are en- stitutional rights and liberties. That is The American people are entitled to titled to the time. what we thought. That is what has listen to those who believe in the nomi- I was in my State for a few hours on been done at other times—not every nee, and to listen to those on the other Friday. The people of my State were time, but most of the time. That is side. No, we are getting our message talking to me, in the few hours I was what the American people expect and right through a PR firm, Creative Re- there, about the prescription drug bill what they are entitled to. sponse Concepts. We are getting our that they just cannot navigate. There But, oh, no, this group is already say- truth right through them. The Amer- are 35 different drug plans from which ing we know how we are going to han- ican people are going to understand his to choose. There are situations where if dle this, whoever it is. We are going to views of constitutional rights and lib- an individual signs up for a particular exalt the assets of this nominee. The erties from Creative Response Con- program—it is interesting, the plan other thing is we are going to launch cepts. When we finish doing the Swift itself can change the premiums and the our attacks on other people before the Boat Veterans for Truth, we have the formularies, but the person cannot get nominee is even out there. This is the Alito nomination right here. This is off that plan. Once they are in it, they confirmation process for the Supreme what the American people are entitled are in it. Or if they do get off the plan, Court of the United States for a nomi- to? they pay an extraordinary penalty to nee who is going to make the decisions The team’s public relations firm quickly get onto another. The plan can change on your rights and liberties for the convinced them it was ‘‘a big deal’’ that deductibles and copays. They are very next 30, 40 years? Attack them as soon could become the centerpiece of the Demo- troubled elderly people. as the nomination is out there. Exalt crats’ attack, one of the people said. There are heart wrenching stories. the nominee’s professional credentials. The article continues. People up there care about the cost of We don’t know who it is, but you better This has been a difficult process to their heating oil going right through get them out there doing it, and we make a judgment and be fair to the the roof. People care about that in my have our network wired around the nominee and also carry forward our re- State. People are absolutely in dis- country to make sure they are going to sponsibilities. But when we have the belief over how a part of America in come out right on it. This for the Su- kind of action on the outside and the New Orleans, Mississippi, and Alabama preme Court of the United States? This failure to be responsive on the inside, can be left out and left behind. They is what we are finding out. in terms of his response to questions, are continually pained by the contin- It continues: this is a disservice to the American ued loss of sons and daughters from my Mr. Leo and other lawyers supporting people. State and from across the country in Judge Alito were inclined to shrug off the This has been a longstanding cam- the Iraq war with really no end in memorandum. paign. It has been a stealth campaign. sight. They are bothered by all of this. This is the 1985 memorandum of I daresay that is not what the Found- They are bothered by the whole issue Judge Alito that he used in an applica- ing Fathers intended, that is not what of lobbying and lobbying corruption. tion for a job with the Justice Depart- they expected, and the American peo- They are working hard because the ment. He was 35 years old. He had ar- ple deserve a great deal better. middle class is having a more and more gued 15 cases before the Supreme I hope people will have the chance to difficult time just trying to make ends Court. He had a number of statements read the whole article. I am not going meet. They are finding that prescrip- in there that were provocative. I will to go through it now. I have given the tion drugs have gone up, heating has come back to that. essence of it. It is very clear how this gone up, education has gone up, gas has This memorandum was provocative nominee was selected, why he was se- gone up, and their wages have not gone because it indicated that he was lected, and how that campaign for him up. It has been 9 years since we in- against a woman’s right to choose, he was conducted. creased the minimum wage. Seven was against reapportionment, which, of As the American people are trying to times we have increased our own pay, course, has had enormous importance make a judgment on this through their by $30,000, but we cannot afford to in- in terms of ensuring people’s right to elected representatives today and to- crease the minimum wage by a dollar. vote and have that vote counted in a morrow, all we are asking for is an op- Hard-working people are hurting in meaningful way. There was some con- portunity to have the kind of full dis- my State of Massachusetts. Today, cern whether this was going to have cussion and full debate that we ought they are wondering whether tonight any impact. This was his real, true to and that Members of the Senate who they are going to have food on the view about the Constitution. This was have not had a chance to speak have an table. Now we are asking them to shift a document which showed his real view opportunity. It is not asking too much. their focus to Judge Alito. Judge about it, which would have been help- I have been in the Senate when we Alito—how is that going to affect what ful to the American people to at least really had filibusters. The idea that we my family is faced with? It will affect understand what Judge Alito’s views are here on a Monday and this came to a great deal your children and your are. the Senate last Wednesday and the op- children’s children’s future. Those lawyers supporting Alito said position is saying, Oh, well, this is de- Here are some of the issues Supreme we will shrug off the memo: laying the work of the Senate—what is Court decisions affect: . . . which described views which were typ- more important to the Senate than a Supreme Court decisions affect the ical in their circles, people involved in the vote for a Justice of the Supreme Court ability of Americans to be safe in their effort said. But the Conservative Response of the United States? What is more im- homes from irresponsible search and Concepts, the team’s public relations firm, portant? This is the issue, this is the seizures and other government intru- quickly convinced them it was ‘‘a big deal’’ time, this is the nominee, and we find sions. We had those cases come up in that could become the centerpiece of the out how we have been treated. the hearings. I will come back and Democrats’ attacks, one of the people said. This body deserves better, and the spend some time on them. It is difficult Creative Response Concepts. Who is American people deserve better. That to believe. this Creative Response Concepts? The is what this vote is this afternoon. Supreme Court decisions affect Creative Response Concepts, if you That is what it is about. Let’s really whether the rights of employees can be

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00005 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.005 S30JAPT1 ycherry on PROD1PC64 with SENATE S264 CONGRESSIONAL RECORD — SENATE January 30, 2006 protected in the workplace. If you are the example of Tennessee v. Lane. That respect to expectant mothers, that is a worker, you should be concerned is a case that was decided in the last very real. about this nominee. few years about disability rights. Who We in Congress pass laws, the Presi- They affect whether families can ob- among us doesn’t have a member of dent signs them, they go to the courts tain needed medical care under health their family who has some kind of for interpretation, and where will this insurance policies. Decisions on health challenges, either mental health chal- nominee come out? Will he come out care, whether they are under ERISA, lenges or physical challenges? We have for that mother who has a child who often go to the Supreme Court. certainly seen it in our family, and has asthma, or that parent seeing the Decisions affect whether people will when we get the chance to talk about pollution taking place in a lake nearby actually receive retirement benefits disabilities and disability rights in this and whose child has been affected by they were promised. There was $8 bil- body, it is always amazing—not amaz- those kinds of poisons? Where is he lion lost in the last 5 years; 700 retire- ing, it is always interesting to me that going to come out on the issues of dis- ment programs lost, $8 billion, where we give such little attention to those crimination in jobs, issues we have workers actually paid in. Who is going who have mental health challenges and been fighting to eliminate under title to protect their rights? Is it going to be disability needs and we give such little VII of our civil rights laws and that the powerful companies, powerful in- attention and assistance to them. still are a problem. terests, special interests, or are we ‘‘Parity’’ is the code word, whether We can go through those cases where going to have a judge who is going to we are going to treat people who have this nominee fails to shape up. Let me be looking out for the worker and the mental health issues and those with just say this vote this afternoon will worker’s interest? It is a legitimate disabilities the same as those who have last for 15 or 20 minutes. But the impli- issue. physical issues. We still haven’t had it. cations of that vote, the implications If you care about your health care, if I certainly hope, with the leadership of for your life, your children’s lives and you care about your retirement, if you Senator DOMENICI, certainly myself, your grandchildren’s lives, will con- care about your conditions of employ- Senator HARKIN, and many other Mem- tinue for years to come. We have only ment, this Supreme Court nominee is bers, that we will have a chance to vote one chance to get it right. This is not where you ought to be focused and on that issue this year. It is long over- a piece of legislation where you can go where you ought to give your atten- due. ahead and pass it and then say, oh, tion. Supreme Court decisions affect well, we got it wrong. Supreme Court decisions affect whether we will have reasonable envi- I think with respect to the prescrip- whether people will be free from dis- ronmental laws that keep our air and tion drug bill we will have to come crimination, prejudice, and outright water clean. Care about the water? back and redo it. I think we should. We bigotry in their daily lives, whether Care about the air we have? Does that can come back and redo a prescription you are going to be told you are not really make much of a difference to us, drug bill. Americans are entitled to going to get the job because of the Senator? Does it really make much dif- that. Seniors are entitled to it. We got color of your skin or because of your ference to us? Interesting, we have dou- it wrong when, effectively, the con- gender. There are cases we went bled the number of deaths from asthma ference was hijacked by the drug com- through during the Judiciary Com- this year than we had 5 years ago—dou- panies and the HMOs. There were ex- mittee hearings about Judge Alito bled the deaths for children. I wonder traordinary payoffs. It was written up being insensitive in those areas. I will why that is. Do you know where they in the Washington Post last week come back to them. are? They are all in the States and cit- about the payoff—it was $46 billion to Do you hear me? Discrimination, ies and communities that, by and the HMOs back in 2003, now it is $67 bil- prejudice, outright bigotry in their large, have inhaled the toxins and the lion. daily lives. You are going to have to dioxins which have come, as a result of People who go to the HMOs are 8 per- make sure you are going to have a Su- changes in the environmental laws, cent healthier, and they got a 7-percent preme Court that is going to be fight- from major plants, carbon-producing inflator, a 15-percent advantage. I ing for you. plants in this country. thought Republicans used to say the The decisions affect whether Ameri- We had laws. I don’t know what to private sector was more efficient; that cans’ most private medical decisions tell a mother when she sees her child we can do it more effectively than the will be a family matter or subject to having that intense reaction. I know, Government so we don’t need extra government interference. Terri as a father of a chronic asthmatic, they help. No, they want all the extras, 15 Schiavo is a classic example. We have live with it. The idea that people out- percent more, so it comes to $46 billion governmental solutions to these issues, grow it—not in our family. We see the more. You are asking why people in my or should these matters be left to the constant challenge that it is for any State are paying higher copays and individuals who are closest to any pa- young person as they grow to adult- premiums and all the rest? It is be- tient—their families, their loved ones, hood. Asthma is increasing, and there cause we have these kinds of payouts. their priests, their ministers, their rab- is no question about it. It is because of We can come back and deal with bis? We had a debate on this issue. Peo- the pollution in the air. those. People can deal with those in ple can think that is a long way away Are we going to have a judge who the elections next fall. I understand from them, but there is nobody in this will recognize what the Congress want- that. You win or lose and we come body, nobody in this audience, nobody ed to do, or someone who is going to back to it, but not on the Supreme who is watching who doesn’t have a say, Oh, no, we have a very powerful Court of the United States. You get real concern for what is going to hap- company down here that seems to have one time, one chance, one vote to get it pen to their parents, to their loved a reasonable argument—as we saw with right. There are no second times. That ones, and whether we are going to be Judge Alito; I will come back to that is what all of this is really about in able to deal with that issue or whether case as well—so, therefore, we are this debate we will have for the course the Supreme Court is going to say: going to find for the company, and we of the day and this afternoon. Well, we think there are appropriate are going to let them continue to dis- As I say, I don’t know what is more governmental kinds of roles in this charge pollutants into the lakes. Do we important that we are going to deal kind of a situation. We certainly saw care about the lakes? Do we care about with. I gave examples of the range of where a majority of this body legisla- the streams? different issues that come before the tively felt the courts ought to become Mercury advisories apply to nearly a Supreme Court. I doubt if there is any- much more involved in that situation. third of the area of America’s lakes body who is listening to this or watch- They basically retreated on that posi- and 22 percent of the length of our riv- ing this who is not affected by at least tion, although some still defended it ers, and mercury pollution has led 45 one or two of those different kinds of even in recent days. states to post fish consumption issues over the course of their life- The decisions affect whether a person advisories. Where kids used to go out time—in terms of their work, their re- with disabilities will have access to and fish and enjoy it, that is absolutely tirement, their pay, in terms of dis- public facilities and programs. I gave denied them for health reasons. With crimination, in terms of environmental

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00006 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.007 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S265 issues and women’s privacy issues, protect children, if you are looking for The ACTING PRESIDENT pro tem- which are so at risk at this particular someone who is going to protect the pore. The clerk will call the roll. time with this nominee. All of those privacy issues of women, this is not The assistant legislative clerk pro- issues are out there. All we are saying your candidate. ceeded to call the roll. is, don’t we think we ought to try to Those are the conclusions of a broad Mr. KENNEDY. Mr. President, I ask get it right? Don’t we think we ought range of different groups who have unanimous consent the order for the to have the chance to lay this out just studied this. It was a broad range. They quorum call be rescinded. a little more? are not just Democrats, not partisan. The ACTING PRESIDENT pro tem- In every one of those examples I Knight Ridder is not partisan. Cass pore. Without objection, it is so or- gave, in those nine different titles, Sunstein is basically in the middle. dered. there are cases on which Judge Alito Some will say this afternoon, oh, well, Mr. KENNEDY. Mr. President, in one has ruled. He has taken a position. In you can always find a few cases. It is reference to Judge Rendell and also many of those cases he has taken the not just a few. These are the over- Judge Chertoff on the two cases I ref- position in strong opposition to other whelming number of studies. Even the erenced, it was Judge Rendell who de- judges appointed by Republicans. Washington Post study, in terms of the scribed the tactics of the marshals Judge Rendell talked about Gestapo- number of victories that people of color brandishing shotguns as ‘‘Gestapo- like tactics that were used when mar- had or the workers had over the exist- like’’ and Judge Chertoff who criticized shals came in on a civil action. There ing power system, reaches the same Judge Alito’s position in an equally bad case, Doe v. Groody, which in- was no crime committed. It was a civil conclusion. volved the strip-search of the 10-year- action in order to repossess a farm in It seems to me we ought at least to old girl. I ask the RECORD reflect that bankruptcy to be sold at public auc- have the opportunity to make sure the American people understand this. It change. tion. People had worked their whole The ACTING PRESIDENT pro tem- takes time. It took some time for the lives for this small farm in Pennsyl- pore. Without objection, it is so or- American people to understand what vania, and the marshals came in, they dered. seized it, and grabbed these individuals was really happening in Iraq. It took Under the previous order, the time who had committed no crime. There some time. They understand now, but from 11 to 12 will be under the control was no attempt to run. There was no it took time. People are working hard. of the majority side, and then debate attempt to hide. There was no attempt They are busy with their jobs and their will continue to alternate on an hourly to evade. And we have Judge Rendell families, and they are trying to do basis until 4 p.m. talking about Gestapo-like tactics by what is right and play by the rules. It The Senator from Wyoming. those marshals. Whether they were Ge- takes some time for them to under- Mr. THOMAS. Mr. President, I appre- stapo-like or they were not Gestapo- stand how this nominee is going to af- ciate the opportunity to talk a little like certainly ought to be decided by fect their lives and their well-being in bit about the judge issue that is before the jury. I think most of us would the future. But there is nothing more us. I have not done so until now. I have agree with that, would we not? important. There is nothing more im- watched this debate with interest be- Judge Alito said: No, no, we are not portant here in the Senate. There is cause I think it is one of the most im- going to let that go to the jury. They nothing more important in the unfin- portant things we do. were just performing their own respon- ished business of the Senate. The system, of course, is for the sibilities. I am not going to let that go Just pick up the calendar and look at President to nominate and for the Sen- to the jury. the unfinished business of the Senate. ate to confirm or reject. So that is Other judges, on issues about wheth- Nothing comes close to it. If you said really one of the important issues be- er there is discrimination in employ- right behind this is the Defense appro- fore us. ment—including some Republican priations bill, this is going to delay a I must confess I have been a little judges who sat with Judge Alito and decision on armor and support for our surprised at the system we have gone said if we follow Judge Alito’s rea- troops, I would say, fine, let’s let that through. It has been strung out for a soning and rationale we would effec- go through. Maybe we will find time very long time and seems to me per- tively—‘‘eviscerate’’ is the word that after that for Judge Alito. But that is haps it has gone on longer than nec- was used—title VII, title VII being the not here. What are we doing after this? essary, but nevertheless that is where provisions we passed in the 1964 act to We are doing asbestos issues. That is we are. I was very pleased to learn it is make sure we were not going to dis- entirely different. We have real ques- not partisan, not political. I was a lit- criminate in employment. tions on that, whether there is going to tle surprised to hear that. But never- The list goes on. It is not just myself be adequate funding for those people theless I do think it is important. or others who have expressed opposi- who have been sickest and all the rest. I have not practiced law, but I cer- tion. We have the very distinguished We have to have a full debate on that tainly understand in our system the Cass Sunstein of the University of Chi- issue. But there is no reason in the Supreme Court is one of the three ele- cago who has done a review of Judge world we cannot take the time and ments of our Government and is a very Alito’s cases and said that 84 percent of can’t have the debate on this issue, important one. And so it is important the time Judge Alito decided for the which is incalculably more important that we deal with it. I just would like powerful or the entrenched interests or to the lives and well-being of Ameri- to say that it seems to me, as I have the government. Cass Sunstein said cans. listened and as I have paid as much at- that. There are sufficient questions across tention as I could to Judge Alito’s Knight Ridder, that is not a Demo- the front pages of America’s news- hearings, I am certainly impressed. I cratic organ. That is not Democrat papers today that raise very serious am impressed with his qualifications members of the committee. They have issues and questions about this whole and his experience. I would think sure- a whole group who analyzed his opin- process that ought to cause our col- ly one of the most important elements ions independently. The Knight Ridder leagues, friends, associates, the Mem- of the question of confirmation is expe- newspaper chain reached the same de- bers of this body, some pause. Let’s try rience, someone who has the qualifica- cision. to think. Let’s try to get it right. I say tions, someone who has had the back- The Yale study group—gifted, tal- let’s try to get it right. We will have an ground. Certainly Judge Alito has ented students and professors up there opportunity to do that this afternoon that—Princeton University, Harvard at Yale University—did a study about at 4:30. Law School, Army Reserve, DOJ legal Judge Alito’s dissents and opinions and Mr. President, I believe my time is counsel, U.S. attorney, unanimously came to the same conclusion. If you just about up. confirmed in New Jersey, circuit court are looking for someone who is going The ACTING PRESIDENT pro tem- judge Third Circuit, unanimously con- to protect the workers, if you are look- pore. The minority has an additional 3 firmed. He has argued 12 cases before ing for someone who is going to protect minutes. the Supreme Court. Many attorneys, of men and women of color, if you are Mr. KENNEDY. Mr. President, I sug- course, have not had this kind of dis- looking for somebody who is going to gest the absence of a quorum. tinguished opportunity. I would guess

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00007 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.008 S30JAPT1 ycherry on PROD1PC64 with SENATE S266 CONGRESSIONAL RECORD — SENATE January 30, 2006 for the most part many of the can- the letter of the ethics rules and to avoid proposed where they described those didates for the Supreme Court have not any situation where there might be an eth- groups that were opposed to the Presi- had that kind of experience. He has had ical question raised. dent gathering with their press re- some 15 years with the Third Circuit, It seems to me those are the kinds of leases to attack the nominee, who were some 35,000 votes. So the background is responses that make you feel com- forced to strip out the name of the per- there. fortable with the candidate. So I am son they thought the nominee would be I think one of the things, certainly, very pleased that apparently we are and put in John Roberts’ name so that that is a part of the confirmation and going toward the end. Certainly, it is they could issue the press releases as the confirmation hearing and what we time to get down toward the end. There soon as the name was made public. need to understand is the positions is no reason to continue to drag this They had prepared their ammunition that these various candidates take, and out. We know what we need to know, it to attack the President’s nominee be- I would like to just share a few is there, and it is time to do it. fore they knew who he was, and they quotations, responses that the judge So I think throughout the process were embarrassed by the fact that they gave to questions that were asked. the candidate has answered the ques- had guessed wrong. But they did not In terms of believing in the Constitu- tions to the best of his ability. Unfor- change a single word of their attack tion and that it protects rights for all, tunately, many of the questioners once they knew that the actual nomi- under all circumstances, in times of spent more time giving speeches and nee was someone different than they peace or war, the judge said: circumventing the process than asking had anticipated. relevant questions, but that is part of My only comments to the Senator Our Constitution applies in times of peace the process. and in times of war, and it protects the from Massachusetts would be that if he rights of Americans under all circumstances. I must confess I am getting a little decries the work that was done in favor It is particularly important that we adhere concerned about the Senate confirma- of a nominee by outside lawyer groups to the Bill of Rights in times of war and in tion process. We ought to take another and public relations firms, he should times of national crisis, because that’s when look at our role and not deviate from join with some of the rest of us and say there’s the greatest temptation to depart that role for other unrelated reasons. that the same criticism applies to from them. So I hope Members have not taken us those who were prepared to savage the down the path of setting a bad prece- It seems to me that is very clear and nominee, whomever he might have dent, and I am sure that is not the one that has been talked about a good been. deal currently. case. I am looking forward to com- If the Senator from Massachusetts Another question was: Do you believe pleting this process starting this after- will have a conversation with Ralph anyone, the President, the Congress, noon and completing it tomorrow. I Neas and the People for the American the courts, rise above the law? The think we have before us a great oppor- Way and say to them, Back off, let the candidate said: tunity to confirm one of the most capa- nominee be made known, let his views No person in this country is above the law. ble persons that we could have on our or her views be made known, have a And that includes the President and it in- Supreme Court. clear evaluation of where they stand Mr. President, I yield the floor. I sug- cludes the Supreme Court. Everyone has to before you start your public relations follow the law, and that means the Constitu- gest the absence of a quorum. attack, then I will turn to the groups tion of the United States and it means the The ACTING PRESIDENT pro tem- laws that are enacted under the Constitution pore. The clerk will call the roll. on the right and say the same thing: of the United States. The legislative clerk proceeded to You back off. Let the nominee be Again, I think that is a very basic call the roll. known. Let the views be examined be- premise. We are all treated equally Mr. BENNETT. Mr. President, I ask fore you mount your public relations under the law. ‘‘Under the law,’’ that is unanimous consent that the order for campaign. the key. the quorum call be rescinded. But we saw what happened when peo- I, as we do, go to schools quite often, The PRESIDING OFFICER (Mr. ple in support of a Republican Presi- and having spent some time on the THOMAS). Without objection, it is so or- dent’s nominee back off and allow the Foreign Relations Committee, I often dered. field to be dominated by those who are tell students that one of the significant Mr. BENNETT. Mr. President, I was on the attack. Out of that first experi- differences about our country and most here in the Chamber in the role of Pre- ence of seeing attack after attack after of the rest of the world is we have laws siding Officer during the presentation attack into an empty field, we have under which everyone is treated equal- of the senior Senator from Massachu- created a new word in the English lan- ly. I think that is one of the keys, and setts in which he referred to a story in guage. It is a verb, to ‘‘Bork.’’ The that response, it seems to me, is a this morning’s New York Times with nominee was Robert Bork. I had my great one. respect to public relations activity problems with Robert Bork. I am not He was asked would he base decisions aimed at supporting Judge Alito. He sure how I would have voted, having on the Constitution and the rule of was quite outraged at what he had read heard his record. But I do know that law, not shifting public opinion. He in the New York Times and talked the record was distorted and the oppor- said: about how improper it was for a public tunity to hear his record was changed relations firm or any group of lawyers by virtue of the groups that were all The Court should make its decisions based prepared to savage him, to attack his on the Constitution and the law. It should to gather together and mount a cam- not sway in the wind of public opinion at any paign on behalf of this nominee; that personality, to destroy any careful time. that should be left to the Senate and analysis of his record. He was Certainly, that is a very important that there should be no outside inter- ‘‘Borked.’’ And we heard that other element as well. He was asked about ference in this process. people would be ‘‘Borked’’ by this same his personal views and how that would The New York Times had focused on savage attack from the left. So I have sympathy with the Senator affect his decisions. He said: the activities that had been in favor of the nominee, and the Senator from from Massachusetts when he complains I would approach the question with an about the groups on the right that were open mind, and I would listen to the argu- Massachusetts found that objection- ments that were made. able. marshaled in advance of the nomina- When someone becomes a judge, you really As I listened to him, I could not help tion to defend the nominee. But I say have to put aside the things that you did as but think of the actions that went for- to him they were marshaled to defend a lawyer at prior points in your legal career ward in opposition to this nominee by the nominee because they saw what and think about legal issues the way a judge groups of lawyers who gathered to- happened when such previous activity thinks about legal issues. gether to get their ammunition ready was not carried forward. With the way When asked about upholding the high in the public arena, by public relations in which the Chief Justice, John Rob- standards of integrity and ethics, he firms that were hired to oppose the erts, moved through here, with both said: nominee. sides having their say but ultimately I did what I’ve tried to do throughout my I remember the story in the Wash- the public demonstrating a sense of re- career as a judge, and that is to go beyond ington Post when John Roberts was vulsion about this whole ‘‘Borking’’

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00008 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.010 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S267 process, and now with Judge Alito jority Leader FRIST had to take the ex- Clinton won an election, campaigning moving forward in a manner far more treme position of filing cloture on this on the basis of the kind of people he dignified than we have seen in the past, very important nomination. No Su- was going to nominate, and President I hope ‘‘Borking’’ would become a his- preme Court nomination has ever been Clinton did that. That is what the Con- toric artifact and would disappear and defeated by filibuster if a majority of stitution says the role of the President, that groups on the far left and the far the Senators stood ready to confirm the role of the Senate is. right would finally realize that the that nominee. Now, that certainly is Now, some of my colleagues have Senate is not moved by these kinds of not the case here because we already said elections have results and the Con- tactics; that the ads that are run, tele- know a bipartisan majority of Senators stitution says the President gets to vision ads attacking the nominee boo- will vote to confirm Judge Alito if we nominate Supreme Court candidates. merang. get to that point tomorrow at 11 Of course, Justice Ginsburg, whether We have seen some of these groups o’clock. We also know we have had you agree with her or not, had the req- that have attacked Judge Alito have plenty of time to debate this nomina- uisite qualifications to serve on the had to have their ads taken down be- tion. It is unfortunate that certain Court. cause they were false, they were at- Senators will vote against this nomi- Right after her, Justice Breyer came tacked by the media generally for the nee because they think doing so is a to the Supreme Court, a liberal as well, severity and the falsity of their posi- good political issue for them. These appointed by President Clinton. But tion. ‘‘Borking’’ does not work any- Senators are applying a very different the Senate confirmed that Justice by a more. And I hope that both sides would standard to what has been the history big vote. The President made his recognize that the Senate has dem- and the tradition in the Senate of con- choice, sent it to the Senate, the Sen- onstrated a level of civility and intel- sidering Supreme Court nominees. The ate found him qualified, and he was ligence in this situation that says we position being taken by these Senators confirmed on an up-or-down vote. No will not be moved by those who raise is that Judge Alito ought to somehow filibuster was ever talked about, and large sums of money, who run tele- share Justice O’Connor’s judicial phi- no one talked about maintaining any vision ads in our home States savaging losophy in order for him to fill that ideological balance on the Court. the nominee. We will be focused on seat where she has been for the last 25 The Supreme Court, then and histori- what happens in the hearings. We will years. cally, is not the place to play politics. be focused on the actual record. We That sort of thinking is totally at The Court is supposed to be, and as far will not allow this to turn into an elec- odds with what the Constitution re- as I know is, free of politics. But the toral circus. quires, but more importantly than Democrats and liberal outside interest That was done in the case of Judge what the Constitution requires, what groups want to change the rules be- Bork. It was not done successfully, al- has been the Senate’s tradition in the cause they did not win at the ballot though it was attempted with Chief last 225 years, and that is that Judge box. They want to implement their Justice Roberts. Alito does not have to be Justice agenda from the Court. Of course, that It is not working now with Judge O’Connor’s judicial philosophy is a dangerous path, making the Su- Alito. I hope people on both sides will soulmate to deserve confirmation by preme Court a superlegislature. The then abandon those tactics, I yield the this Senate. Because the Supreme Constitution does not presume that. floor and suggest the absence of a Court does not have seats reserved for Under our checks-and-balances system quorum. one philosophy or another. That kind of Government, we do not want to go The PRESIDING OFFICER. The of reasoning is completely antithetical down that path. Going down that path clerk will call the roll. to the proper role of the judiciary in will create a standard that will seri- The legislative clerk proceeded to our system of Government. ously jeopardize the independence of call the roll. My colleagues on the other side, the judiciary and distort our system of Mr. GRASSLEY. Mr. President, I ask then, have it all wrong. There has Government, a system based upon the unanimous consent that the order for never been an issue of ideological bal- judiciary being the arbiter of the war the quorum call be rescinded. ance on the Court. If that were the that often—I should say continually The PRESIDING OFFICER. Without case, do you think President Ford goes on between the executive branch objection, it is so ordered. would have nominated Justice Stevens of Government and the legislative Mr. GRASSLEY. Mr. President, I as- or President Bush 1 would have nomi- branch of Government. sume the order of business is to speak nated Justice Souter—two Republican Democrats want the Supreme Court on the Alito nomination. appointees who have turned out to be to assume an expansive role well be- The PRESIDING OFFICER. The Sen- the most liberal members on the Court yond what was originally intended by ator is correct. appointed by Republicans? Those Presi- the Constitution and its writers. They Mr. GRASSLEY. Mr. President, I dents did not think in terms of ideolog- want the Court to take on a role that choose to do that. ical balance. is closer to the role of the legislative I support the nomination of Samuel The Senate’s tradition, then, has not branch, which is to make policy and Alito. Judge Alito, as we heard in our been to confirm individuals to the Su- bring about changes in our society. hearings, and so far in most of the de- preme Court who promote special in- Now, this has consequences when you bate on the floor, is a person who is a terests or represent certain causes. The go down this road. It has brought about dedicated public servant, who practices Senate has never understood its role to the politicization of the judicial con- what he preaches: integrity, modesty, maintain any perceived ideological bal- firmation process that we have seen judicial restraint, and a devotion to ance on the Court. To the contrary, the evidenced, particularly on the Alito the law and to the Constitution. He un- Senate’s tradition has been to confirm nomination, but also on the Roberts derstands a judge should not have a individuals who are well qualified to nomination, or go back 3 years pre- personal agenda or be an activist on interpret and to apply the law and who vious to the holding up of several cir- the bench but should make decisions as understand the proper role of the judi- cuit court nominees before this body they should be decided—do it in an im- ciary to dispense justice. through the threat of filibuster or not partial manner, do it with an open Recent history, of course, is proof of just the threat but the use of the fili- mind, and do it with appropriate re- that because in my years in the Sen- buster. straint and, of course, in accordance ate, but as recently as 10, 12 years ago, Politicizing the judicial confirmation with the laws and the Constitution. when Ruth Bader Ginsburg was before process is wrong. That is because when Listening to a lot of my colleagues the Senate, we gave overwhelming con- judges improperly assume the role of on the committee, and last week, I am firmation to her—a former general deciding essentially political questions extremely disappointed that we are counsel of the very liberal group, the rather than legal questions, the judi- looking now at an attempt by Sen- ACLU. She replaced a conservative cial confirmation process devolves into ators—and they are all on the other Justice, Byron White, on the Court at one focused less on whether a nominee side of the aisle—to delay and fili- that time. The Senate confirmed Jus- can impartially and appropriately im- buster this nominee. It is too bad Ma- tice Ginsburg. Why? Because President plement law. Instead, it becomes one

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00009 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.011 S30JAPT1 ycherry on PROD1PC64 with SENATE S268 CONGRESSIONAL RECORD — SENATE January 30, 2006 more focused on whether a nominee factual situations that come up. But in doing on the bench. But the bottom line is, will implement a desired political out- that, the judiciary has to be very careful not who should win in a case depends on come, and do it from the bench, regard- to inject its own views into the matter. It the facts presented in that specific case less of the law and regardless of what has to apply the principles that are in the and what the applicable law says. What Constitution to the situations that come be- the Constitution says. fore the judiciary. is important to Judge Alito is that he Americans want what the Constitu- rules on specific facts in the case and tion writers have always called for: To quote Judge Alito again: the issue before the Court, in accord- judges who will confine their job to in- A judge can’t have any agenda. A judge ance with the law and the Constitu- terpreting the law as passed by legisla- can’t have any preferred outcome in any par- tion. ticular case. And a judge certainly doesn’t As his colleagues attested, Judge tive bodies and the Constitution as have a client. The judge’s only obligation— written rather than having the same and it’s a solemn obligation—is to the rule of Alito doesn’t have a predisposed out- group of men and women make policy law, and what that means is that in every come in cases. He doesn’t bow to spe- and societal changes from the bench. single case, the judge has to do what the law cial interests but sticks to the law re- We need to reject firmly the notion requires. gardless of whether the results are pop- that the Supreme Court should be in Judge Alito also understands that ular. That is precisely what good the business of political decision- the Constitution provides justice for judges should do and what good judging making or in the business of politi- all, for everybody. He told the com- is all about. cians—you and I who were elected to mittee this: Moreover, when you consider all the Senate. No person in this country, no matter how these accusations, look at what the The Constitution provides that the high or powerful, is above the law, and no ABA said. They unanimously voted to President nominates a Supreme Court person in this country is beneath the law. award Judge Alito their highest pos- Justice and the Senate provides its ad- He said: sible rating, and that is, in their words, ‘‘well qualified.’’ A panel of Third Cir- vice and consent. Alexander Hamilton Our Constitution applies in times of peace wrote an awful lot about the role the and in times of war, and it protects the cuit Court judges—I already referred to judiciary was to play and what judges rights of Americans under all circumstances. two of them—who worked with Judge Alito more than 15 years, in their testi- were supposed to do because he had to Judge Alito understands the impor- mony had unqualified support for explain that in relation to the ratifica- tance of the independence of the judici- Judge Alito as they appeared before tion by the original 13 States. So he ary in our system of checks and bal- the committee. These colleagues didn’t wrote several papers. But in Federalist ances. We ought to be careful to make see Judge Alito to be an extremist, 66, he wrote: sure that we only approve judges who hostile to specific groups, or with hav- [I]t will be the office of the President to understand that. His colleagues believe ing a personal agenda. They testified nominate, and, with the advice and consent Judge Alito will be an independent about Judge Alito’s fairness, his impar- of the Senate, to appoint. There will, of judge who will apply the law and the tiality with respect to all plaintiffs. course, be no exertion of choice on the part Constitution to every branch of Gov- of the Senate. They may defeat one choice of Judge Lewis, one I have not quoted the Executive, and oblige him to make an- ernment and every person because yet, described himself to the com- other; but they [meaning the Senate] cannot Judge Alito knows that no one, includ- mittee to be ‘‘openly and themselves choose—they can only ratify or ing the President, is above the law. unapologetically pro-choice’’ and ‘‘a reject the choice he may have made. When I said ‘‘his colleagues,’’ I meant committed human rights and civil The way the Senate provides its ad- those colleagues who testified before rights activist.’’ But yet a person com- vice and consent has been by a thor- our committee and have worked with ing from this end of the legal con- ough Judiciary Committee evaluation, him for a long time on that circuit. tinuum fully endorsed Judge Alito to and then by an up-or-down vote in the One of his colleagues, Judge Aldisert, the Supreme Court, testifying: full Senate. The Judiciary Committee testified: I cannot recall one instance during con- has an important job because its mem- Judicial independence is simply incompat- ference or during any other experience that bers can ask in-depth questions of the ible with political loyalties, and Judge I had with Judge Alito, but in particular dur- nominee. The committee evaluates Alito’s judicial record on our court bears ing conference, when he exhibited anything whether the nominee has the requisite witness to this fundamental truth. remotely resembling an ideological bent. judicial temperament, intellect, and Former Judge Gibbons, who now rep- The testimony of Judge Lewis con- integrity. The committee also looks to resents clients against the Bush admin- tinues: see whether a nominee understands the istration over its treatment of detain- If I believed that Sam Alito might be hos- proper role of a Justice and respects ees in Guantanamo, doesn’t believe tile to civil rights as a member of the United the rule of law and the words of the that Judge Alito will ‘‘rubber-stamp’’ States Supreme Court, I guarantee you that I would not be sitting here today . . . I be- Constitution over any personal agenda any administration’s policy if it vio- lates the law and Constitution. He said: lieve that Sam Alito will be the type of jus- because no Justice should be sitting on tice who will listen with an open mind and the Court who has a personal agenda I’m confident, however, that as an able will not have any agenda-driven or result- that he wants or she wants to carry legal scholar and a fairminded justice, he oriented approach. out. will give the arguments—legal and factual— that may be presented on behalf of our cli- Justice Aldisert summarized these I have been a member of the Judici- ents careful and thoughtful consideration, judges’ testimony best on the day they ary Committee for more than 25 years without any predisposition in favor of the appeared before the committee when and take this responsibility seriously, position of the executive branch. he said: as do my colleagues. I thought Judge Yet Judge Alito’s critics claim he is We who have heard his probing questions Alito did a very good job answering our out of the mainstream. That is what during oral argument, we who would have questions and that he was candid. No the debate last week was all about been privy to his wise and insightful com- doubt he was thorough. As far as I am from the other side, that he is a judge ments in our private decisional conferences, concerned, he was very responsive. we who have observed at firsthand his impar- with an agenda hostile to individual tial approach to decision-making and his Judge Alito understands the proper rights, civil rights, women, and the dis- role of the judiciary is not to make the thoughtful judicial temperament and know abled. The truth is, Judge Alito’s his carefully crafted opinions, we who are his law. He will strictly interpret the law record has been distorted and colleagues are convinced that he will also be as written and do his best to remain mischaracterized. First, a statistical a great justice. faithful to the actual meaning of the analysis that some try to use of how What other conclusion can you come Constitution. As Judge Alito said: many times a certain kind of plaintiff to when you listen to people who have Judges don’t have the authority to change wins or loses is not the way we dis- been close to him for a long time? We the Constitution. The whole theory of judi- pense justice in America. It is a bad had a lot of people who worked with cial review that we have, I think, is contrary to that notion. The Constitution is an endur- way to look at a judge’s record. It is him on the court, who were not judges, ing document and the Constitution doesn’t easy to manipulate and cherry pick who also appeared from both political change. It does contain some important gen- cases to reach certain desired conclu- parties. How can you come to any con- eral principles that have to be applied to new sions of why somebody should not be clusion other than Judge Alito is going

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00010 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.012 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S269 to do what Justices on the Supreme and LEAHY for conducting the hearings turers are struggling in Michigan, as Court ought to do based upon his 15 in a respectful and bipartisan manner. well as across the country, and every years on the circuit court, that he is The Constitution grants all Americans, day we see announcements of plant fair and openminded and will approach as we know, the same rights and lib- closings and filings of bankruptcy. cases without bias and without a per- erties and freedoms under the law, Michigan families are worried. They sonal agenda? which is why it is so important that we are worried that they will not have a The people who know Judge Alito get this right. These are the sacred val- job tomorrow. They are worried that best believe, without reservation, he is ues upon which the United States was they are going to lose their pensions a judge who follows the law and the founded—not just words, but they are and their health care benefits for them- Constitution without a preset outcome values, they are beliefs, they are the selves and their families. We in Michi- in mind. They believe he is a man of motivation for us as we, together, fight gan need a Supreme Court nominee great integrity, modesty, intellect, and for the things we want for our families who will stand with us, stand with insight. They believe he is a fair and and work hard every day as Americans Michigan’s workers and families, and openminded judge, committed to doing to make sure this democratic process Judge Alito is not that nominee. what is right rather than committed to works for everybody. We count on the In Belcufine v. Aloe, a company in implementing a personal agenda. Supreme Court to protect these con- bankruptcy did not give its employees After hearing all that, some of my stitutional rights at all times, whether the retirement benefits and vacation colleagues ought to be ashamed of the the majority agrees or whether it is time they earned before the bank- ruptcy. Under Pennsylvania law, cor- blue smoke they are making out of this popular. Every American has the same porate officers are personally liable for nomination or the ghosts they are put- rights under our Constitution. ting up to scare us. Judge Alito will Judge Alito’s nomination comes at a nonpayment of wages and benefits. The employees sued, and Judge Alito sided carry out the responsibilities that a time when we face new controversies with the company, saying that the law Justice on the Supreme Court should, over governmental intrusion into peo- did not apply once a company filed for and he will do it in a principled, fair, ple’s private lives, from secret wiretaps bankruptcy. Not only did he side with and effective manner. conducted without a warrant or the the CEOs at the expense of their work- If Members have any doubt where I knowledge of the FISA Court, to at- ers’ hard-earned wages and pensions, stand, I will cast my vote in support of tempt to subpoena millions of Internet but he legislated from the bench to get Samuel Alito. This highly qualified searches at random from companies the result he wanted. nominee deserves to be confirmed to such as Google. One of the most impor- Judge Greenberg, a Reagan ap- the Supreme Court. I hope my col- tant responsibilities of the Supreme pointee, wrote a strong dissent accus- leagues will see that as well and vote Court is to serve as a check on exces- ing Judge Alito of trying to rewrite the accordingly, particularly on a very sive Government intrusion into peo- Pennsylvania law, stating: tough vote because of the extraor- ple’s lives. [W]e are judges, not legislators, and it is dinary majority it takes to also vote to In light of where we are today and beyond our power to rewrite the [law] so as end a filibuster, the first filibuster of the issues that this Court will face, it to create a bankruptcy exception in favor of the 110 nominees to the Supreme is even more important to have a Jus- statutory employers merely because we be- Court. Hopefully, we will never see an- tice who will stand up for Americans. lieve it would be good for business to do so. other extraconstitutional action taken Unfortunately, Judge Alito’s record Again, a colleague indicating that, in by our colleagues on the floor of the is clear and deeply troubling. When one fact, Judge Alito was writing law in- Senate with such a filibuster once looks at his writings, his court opin- stead of just interpreting the law. again. Vote to end the filibuster late ions from over 15 years on the Third In another case addressing pension this afternoon and then vote to con- Circuit Court of Appeals, and when one benefits, the plaintiff had worked in firm Judge Alito tomorrow. looks at the hearing transcripts, there jobs covered by the Teamsters pension I yield the floor and suggest the ab- is a clear and consistent record of sid- fund from 1960 to 1971, had a 7-year sence of a quorum. ing with the government, siding with break in service, and then worked The PRESIDING OFFICER. The other powerful interests at the expense under the fund again from 1978 until clerk will call the roll. of American citizens. his retirement. The majority on the The bill clerk proceeded to call the In case after case, whether it is about court held that both periods of employ- roll. job discrimination, pensions, illegal ment would be counted when you are Ms. STABENOW. Mr. President, I ask searches, or privacy issues, he has been calculating his pension benefits, re- unanimous consent that the order for an activist judge who has tilted the gardless of the break in service. If you the quorum call be rescinded. scales against the little guy. Often, he are working and then you need to take The PRESIDING OFFICER (Mr. has been criticized by his colleagues as a break, whether it is illness, caring for CHAMBLISS). Without objection, it is so trying to legislate from the bench in a loved one—regardless of the cir- ordered. order to reach the result he desires. cumstance—if you come back to work Ms. STABENOW. Mr. President, this His views are way outside the main- under the pension system, you work is an incredibly important time in our stream, especially in his dissent opin- until retirement, all of the years you Nation’s history. This is the second Su- ions. There are numerous cases where worked hard should be counted toward preme Court nominee to come before Judge Alito was the only dissenter, your pension. Judge Alito dissented, arguing that the Senate in the past 6 months. We which means he felt strongly enough the first period of employment, a total are truly at a time where we are mak- about his personal views that he ob- of 11 years of hard work, should not ing decisions that will affect our chil- jected to what the other 10 judges sup- count, essentially cutting the workers’ dren, our grandchildren, and an entire ported and wrote his own separate pension benefits. If his dissent had pre- generation of people. Sandra Day opinion on an issue. These dissents give vailed—and thank goodness it did not— O’Connor, the first woman Justice, and insight into what I believe is an ex- workers across this country would often the critical deciding vote, is re- treme ideology on the most basic of have their pensions cut, even if they tiring, as we know. The nominee who American freedoms, liberties, and worked 30 years in one job, if there was will replace her will have the power to rights. a gap in their employment. That is not change the direction of the Court and, Because of his extreme record and right. If you work hard for 30 years, as I indicated, touch people’s lives, af- after much deliberation, I concluded you should get the entire pension you fect people’s lives and opportunities for that Judge Alito is the wrong choice to paid in and you have earned. a generation. replace Sandra Day O’Connor on the The majority once again admonished I take this constitutional responsi- U.S. Supreme Court. He may well, as Judge Alito for ignoring the plain lan- bility very seriously, as I know my col- we know, be the deciding vote on issues guage of the law and trying to legislate leagues do. I have closely studied that affect our children and grand- from the bench, reminding him that: Judge Alito’s written opinions, his tes- children and an entire generation. Changes in legislation is a task for Con- timony, as well as the hearing tran- His record on workers’ protections is gress and if our interpretation of what Con- script. I commend Senators SPECTER outside the mainstream. Our manufac- gress has said so plainly is now disfavored, it

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00011 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.014 S30JAPT1 ycherry on PROD1PC64 with SENATE S270 CONGRESSIONAL RECORD — SENATE January 30, 2006 is for Congress to cure. We do not sit here as He recommended that when the constitutionality of a Tennessee law a policy-making or a legislative body. President signs a bill passed by Con- which allowed police to shoot a fleeing Judge Alito has had a clear and con- gress, he should issue a signing state- suspect, even when the shooting was sistent record when it comes to siding ment announcing his interpretation of intended only to prevent the suspect with corporate interests over working the law in order to influence the from escaping and not to protect the Americans and, in many of these cases, court’s interpretation, essentially cre- officer or the public from harm. he has been out of step with the major- ating a backdoor line-item veto. In this case, a 15-year-old boy broke ity of the court. He dissented on a case Why is this important? I had one par- into a house and stole $10 worth of to pay reporters overtime pay under ticular case recently which I will share money and jewelry. The police arrived the Fair Labor Standards Act. He dis- with you, Mr. President. Last fall, Sen- while the boy was in the process of run- sented from a majority opinion that ator VITTER from Louisiana and I in- ning away. They ordered him to stop. found a company in violation of Fed- cluded an amendment in the 2006 Com- He did not stop. And despite the fact eral mining safety standards on a site merce-Justice-State appropriations bill they could see he was unarmed, the of- where they were removing materials to prevent the pharmaceutical industry ficer shot him in the back of the head from a refuse heap and sending them to from taking advantage of the Presi- and killed him. The officer did not powerplants to be processed into elec- dent’s trade promotion authority to in- shoot this unarmed 15-year-old because tricity. These are laws that exist to sert language that prevents prescrip- he was a danger to others but to keep protect working Americans, to protect tion drug importation. him from escaping. their health and their safety. The re- A majority of us in the Senate and in The Sixth Circuit found that this law cent tragedies in West Virginia have the House believes that we should be was unconstitutional, but in his memo, reminded us of how important this is, able to safely bring retail prescription Judge Alito argued that the case was but Judge Alito argued that the safety drugs back into our country for our ‘‘wrongly decided’’ and that this was an standards did not apply to this site. citizens at a much reduced price. There issue that should be left to the State The same is true for workplace dis- was also a nearly identical provision legislatures. crimination cases. Time and again, he put in the House bill, and in the final The Justice Department did not file a has voted to make it more difficult for bill, we basically were saying you can’t brief in this case, and the Supreme victims of discrimination to get their use trade agreements to stop a policy Court ultimately rejected Judge Alito’s day in court as Americans. that is supported by Congress and use position and found the law unconstitu- In Sheridan v. E.I. DuPont de Ne- it as a backdoor way to stop the re- tional, writing: mours, a hotel employee sued, claiming importation of less expensive prescrip- sex discrimination. Over the years, she It is no doubt unfortunate when a suspect tion drugs for citizens. who is in sight escapes, but the fact that po- was promoted from a part-time wait- Even though this was in the final bill lice arrive late or are a little slower afoot ress to a supervisory position. She re- that came to the President’s desk, in does not always justify killing the suspect. A ceived commendations and bonuses for his signing statement, the President police officer may not seize an unarmed, her work. But after she complained stated that this section was ‘‘advi- nondangerous suspect by shooting him dead. about sexual harassment, she was de- sory.’’ We passed a law—bipartisan, In Doe v. Groody, Judge Alito dis- moted, and her work environment got House, Senate—and it goes to the sented from a majority opinion written worse and worse. President’s desk. He signs it but states by now Homeland Security Secretary The trial court dismissed the case, Michael Chertoff to uphold the strip and by a vote of 10 to 1, the Third Cir- that this section is advisory and basi- cally backdoor-vetoed this new law. search of a 10-year-old girl and her cuit reversed, saying she had produced mother, even though neither was a enough evidence to warrant a jury trial The President can’t pick and choose criminal suspect, presented any risk or of her peers. Judge Alito was the lone which provisions of a law he will enact was named in the search warrant. dissenter, arguing that she had not pre- when he signs a new law when it is The search warrant specifically lim- sented enough proof and that her case passed by this Congress. ited the search of persons to the sus- should be dismissed. When you are out- These views of Presidential power are pect, John Doe, but when police ar- numbered 10 to 1, you really are out- troubling enough, but Judge Alito’s rived, they only found Jane Doe and side the mainstream. record on the bench only reinforces his In another dissent, Judge Alito voted unwavering support for the govern- her 10-year-old daughter inside the to deny a mentally retarded young ment’s position in case after case. house. They took the mother and the man the chance to challenge severe Whether it is the President of the little girl to another room and strip- abuse and sexual harassment. In his United States or a low-level official, he searched them, having them lift their very first job out of high school, he had has supported the government’s posi- shirts, drop their pants, and turn suffered vicious sexual harassment. He tion at the expense of Americans’ lib- around. was held down in front of a group of erties and rights. Judge Chertoff held that the warrant workers, subjected to sexual touching, One of the most important issues we clearly limited police authority to the and he feared he would be raped. Judge face today is personal privacy and free- search of John Doe and not all occu- Alito would have denied him a trial, dom. We are having this debate in the pants in the house. Judge Alito dis- not because the facts were disputed but Senate right now with the PATRIOT sented, accusing the majority of a because he felt that the brief was not Act reauthorization, and we see it in ‘‘technical’’ and ‘‘legalistic’’ reading of well written. the news reports with the Justice De- the warrant. The warrant was clear, Judge Alito even joined an opinion partment seeking unprecedented but Judge Alito argued for a broad de- preventing veterans from suing the amounts of information on what Amer- parture from what was actually writ- Federal Government for failing to en- icans look up on the Internet. ten in the warrant in a way that would force a law which requires agencies to When has the government gone too favor governmental intrusion. have plans in place to help veterans far? It is a question we face in the Sen- I hear my colleagues from across the gain employment. ate, and the Supreme Court will have aisle saying over and over again that The Supreme Court is the ultimate to eventually answer. Unfortunately, they want judges who will follow the check on Presidential overreaching. in cases involving privacy, security, law and not legislate from the bench. However, when he was at the Justice and protection from unjustified search Judge Alito ignored the plain language Department, Judge Alito advised to ex- and seizures, Judge Alito has consist- of a search warrant in order to allow pand Presidential power and argued ently sided with the government inter- the strip search of a 10-year-old girl. that ‘‘the President’s understanding of ests. How is this not legislating from the a bill should be just as important as As an Assistant Solicitor General in bench? that of Congress.’’ So, in other words, the Reagan administration, Judge Judge Chertoff certainly thought so. passing a bill for us is not enough; Alito authored a memo on whether the He criticized Judge Alito’s view as equal standing is what the President Justice Department should file a threatening to turn the requirement of believes it says or wants it to say or friend-of-the-Court brief in Tennessee a search warrant into ‘‘little more than his opinion on what it says. v. Garner, a Supreme Court case on the the cliche rubberstamp.’’

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00012 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.016 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S271 In another case deeply concerning to small number of women and didn’t sub- When we take a step back and look me, a family of dairy farmers was being stantially limit access to an abortion, at the entirety of Judge Alito’s record, forced off their farm by a bankruptcy even though the women affected may we see a systematic tilt toward power- court. This was in Pennsylvania. It face physical abuse as a result of this ful institutions and against the little could easily have been in Michigan or requirement. The Supreme Court, in- guy; a long history of writing ideologi- anyplace else in the Midwest. When cluding Judge O’Connor, affirmed that cally driven dissents that are not only they refused to leave their farm, seven the spousal notification provision was out of step with the majority of his U.S. marshals and a State trooper ar- unconstitutional, rejecting Alito’s ar- peers on the Third Circuit but are way rived at their home to evict them by gument, comparing it to antiquated outside the mainstream of America. pointing shotguns and semiautomatic 18th century laws that said that women Let me say in conclusion, whether it rifles at the family. The marshals had no legal existence separate from is a family losing their dairy farm, grabbed a family friend who was also at their husbands. workers losing their pensions, a men- the house and used him as a human Justice O’Connor eloquently summa- tally disabled young man who was the shield. They put a gun to the man’s rized the problem with Judge Alito’s victim of sexual harassment in the back, led him into another house on position, writing, ‘‘women do not lose workplace, an unarmed 15-year-old boy the property, and told him: If anything their constitutionally protected liberty being shot dead in the back of the goes wrong in here, you are going to be when they marry.’’ head, a strip search of a 10-year-old These cases are not isolated in- the first to go down. girl, or the ability of a woman to make The family sued, arguing that the stances. They are part of a long and her own reproductive health decisions, marshals used excessive force. Judge consistent record of siding with power- Judge Alito has consistently said no to Alito wrote an opinion saying it was ful interests over Americans—people the daily concerns of average Ameri- who have had their rights violated, reasonable for marshals, carrying out cans. an unresisted civil eviction notice, to people who have been injured, people Now we are being asked not just to point shotguns and semiautomatic ri- who have lost their pensions, people confirm a nominee who has spent 15 who have been victimized and are ask- fles at a family sitting in their living years tipping the scales of justice ing the court to make things right, room. These people were not criminals. against those Americans but to con- make things whole, women in this They were not dangerous. They were firm a judge who will replace Sandra country who want to know they are re- dairy farmers who had lost their home Day O’Connor, a woman who was a con- spected in their privacy and their most and their livelihood because of a bank- sensus builder, a uniter on the U.S. Su- personal decisions, just like men. ruptcy. For 15 years, Judge Alito has said no. preme Court. Judge Alito also argued that putting Based on this record, I cannot in A group of schoolchildren, ages 6 to 8, a gun to the man’s back and using him good conscience cast my vote for Sam- were being sexually abused by their bus as a human shield was not an unreason- uel Alito to be Associate Justice of the driver. Despite the young age of the able search under the fourth amend- children and the fact that the driver U.S. Supreme Court. The Supreme ment because the marshals never told had total custody of them when they Court is the ultimate check on Presi- him that he wasn’t free to leave. were on the bus, Judge Alito joined an dential overreaching. And over and A fellow judge on the court dissented opinion dismissing the case, arguing over again, we see this judge siding and called the marshals’ conduct ‘‘Ge- that the school superintendent did not against Americans. stapo-like’’ since seven marshals had have a duty to make sure the children We can do better than this nominee detained and terrorized the family and were protected because riding the bus at this critical time in American his- friends and ransacked a home while wasn’t mandatory. tory, and I urge my colleagues to join carrying out an unresisted civil evic- A disabled student had to drop out of me in voting no on this nominee. tion. But Judge Alito’s decision made medical school because of her severe The PRESIDING OFFICER. The Sen- sure the family never got a trial. back pain that made it difficult for her ator from Massachusetts. In another dissent, Judge Alito again to sit in classes for hours at a time. Mr. KERRY. Mr. President, on count- would have allowed the invasive search She had requested a special chair dur- less nominations Democrats have of a mother and her teenage son based ing class so she could continue her joined Republicans and Republicans on a broad reading of a warrant. Mrs. studies and become a doctor. The have joined Democrats to send a judi- Baker and her three children arrived at school failed to accommodate her re- cial nomination to the floor with a the home of her oldest son for dinner in quest, and the Third Circuit ruled that powerful, bipartisan vote. Chief Justice the middle of a drug raid by police. The her case should go forward, she should Roberts came to the floor 13 to 5. Jus- warrant was limited to the search of have her day in court. But Judge Alito tice Breyer came to the floor unani- her son’s home, but when Mrs. Baker dissented, arguing that the case should mously. Justice Ginsburg came to the and her three children started walking not go to trial; she should not get her floor unanimously. Justice Breyer won up to the house, the police threatened day in court. The majority wrote that on the floor 87 to 9; Justice Ginsburg, them with guns, handcuffed them, and ‘‘few if any Rehabilitation Act cases 97 to 3; and Chief Justice Roberts, 78 to dumped Mrs. Baker’s purse out onto would survive’’ if Judge Alito’s view 22. the ground. They then took her teen- prevailed. But, in this case, Judge Alito comes age son into the house and searched A college student died at a varsity la- to the floor in a straight party line, him. Judge Alito once again dissented crosse practice. None of the team’s particularly divided vote. In a divided to keep a jury from hearing whether coaches were trained in CPR. The near- country, at a time of heightened par- the police acted unlawfully by est phone was 200 yards away on the tisan tensions, at a time of ideology handcuffing, holding at gunpoint, and other side of a 8-foot fence, and there often trumping common sense or broad searching a mother and her teenage was no ambulance on the field. The public interest, the President has cho- children who by happenstance walked Third Circuit ruled to allow the case to sen to send a Supreme Court nominee up to visit the home of a family mem- move forward, for the family to have who comes directly out of a revolt by ber. their day in court. But once again, the ideological wing of his party in This disregard for the personal pri- Judge Alito said no. order to satisfy their demand for ideo- vacy and freedom of Americans extends A worker suffered severe injuries logical orthodoxy. to the decision on a woman’s right to after being thrown through the wind- Some people obviously delight in choose, which affects every woman in shield of a garbage truck after the that. We have read about that today in this country. In Planned Parenthood v. brakes of the truck failed. He brought the New York Times. And that is their Casey, Judge Alito voted in dissent to a products liability lawsuit, arguing right. But most don’t. Most don’t think uphold a law requiring a woman to no- that the damaged hydraulic brake lines that is the way to pick a Supreme tify her husband before exercising her were a design defect. The Third Circuit Court Justice. It doesn’t mean it is constitutional right to obtain an abor- ruled in favor of the injured worker, good for the country, it doesn’t mean it tion. He argued that the spousal notifi- but Judge Alito sided with the com- fills our current needs, and it doesn’t cation provision would only restrict a pany. mean it is even the right thing to do.

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00013 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.018 S30JAPT1 ycherry on PROD1PC64 with SENATE S272 CONGRESSIONAL RECORD — SENATE January 30, 2006 As we approach this nominee, we Supreme Court has granted the execu- ever. Segregation would still be a fact can’t forget that he was not the Presi- tive the right to use torture, or to of life. African American children dent’s first choice. His first choice was eavesdrop without warrants. Not after would be forced to attend their own Harriet Miers, and opposition to her a woman’s right to privacy has taken schools, would be receiving an inferior nomination came not from Democrats away. Is history going to care what we and inadequate education. And, there but from the far right of the Repub- say after the courthouse door is would have been no catalyst to start lican Party. They challenged her ideo- slammed in the faces of women, mi- the civil rights movement. logical purity with such conviction norities, the elderly, the disabled, and So a vote for a Supreme Court nomi- that the President capitulated to their the poor? No. Except to wonder why we nee is in fact a vote for the rights and demands and gave them Judge Alito in- didn’t do more when we knew what was freedoms we care about and fight for. stead—a nominee who they received coming. That is exactly what this vote is. with gleeful excitement. Obviously, I have heard some people There is no question in anyone’s Jerry Falwell ‘‘applaud[ed]’’ his ap- try to argue that exercising our rights mind. Samuel Alito will have a pro- pointment. Ed Whelan called it ‘‘a is ‘‘obstructionist.’’ But did people sug- found impact on the Supreme Court. truly outstanding nomination.’’ Rush gest it was obstructionism when the This is a pivotal moment in history for Limbaugh called the nomination ‘‘fab- extreme rightwing of the Republican the Court. You only need to look at his ulous.’’ Ann Coulter and Pat Buchanan Party scuttled the nomination of Har- past opinions to know that much. raved about how it would upset lib- riet Miers? How many times have we Let me share with you the story of erals. This rightwing reaction can only heard our colleagues come to the floor David D. Chittister. On February 14, mean one thing: they know what kinds and demand that judicial nominees get 1997, David requested sick leave from of opinions Judge Alito will issue— an up-or-down vote? She never got an the Pennsylvania Department of Com- opinions in line with their extreme ide- up or down vote. She never even got a munity and Economic Development, ology. hearing. Yet a minority in the Repub- where he worked. He was granted All of this is to be contrasted with lican Party was able to stop a nominee leave, but approximately ten weeks the standard set out by Justice Potter that they considered unfit for the Su- later, his leave was revoked, and he Stewart. He said: preme Court. was fired. David knew that the Family The mark of a good judge is a judge whose It is hardly obstructionist to use, as Medical Leave Act guaranteed him 12 opinions you can read and . . . have no idea the former chair of the Judiciary Com- weeks of sick leave. So he sued the if the judge was a man or a woman, Repub- mittee Senator HATCH described it, Pennsylvania Department of Commu- lican or Democrat, a Christian or Jew . . . ‘‘one of the few tools that the minority nity and Economic Development for You just know that he or she was a good has to protect itself and those the mi- firing him during that time. judge. nority represents.’’ That is exactly Put yourself in David’s shoes. Imag- What he is saying is not really lim- what we are doing here. That is why we ine that you become sick. You become ited to the status of religion, gender, or have the Senate and the rules we live so sick that you are hospitalized, com- politics, or any other trait by which we by. We are protecting basic rights and pletely unable to work. The only rea- categorize people. He is saying that a freedoms that are important to every son that you can afford your treatment good judge through all their decisions American: privacy, equality, and jus- is because you are still employed. And shows no discernible pattern of iden- tice. above all you believe that you are pro- tity that pigeonholes that judge except It is important to remember that the tected by the Family Medical Leave for the purity of their legal reasoning, rights we are expressing concern about Act. their genuinely open-minded approach didn’t come easily. Access to the court Now imagine that Judge Alito is on to judging. house, civil rights, privacy rights, vot- the Supreme Court. He is one of the But in Judge Alito we do see pat- ing rights, antidiscrimination laws—all nine voices that gets to decide whether terns—patterns which demonstrate a of these were hard fought for. They the Family Medical Leave Act is con- bias towards the powerful, patterns came with bloodshed and loss of life. stitutional. And he votes the way he which demonstrate a lack of skep- Their achievement required courage did on the Third Circuit, invalidating ticism towards government over- and determination. None of these basic that part of the Family Medical Leave reaching, and patterns which dem- rights were written into law without a Act which guarantees an individual 12 onstrate a hostility to the disadvan- fight, and still today it requires con- weeks of sick leave and applies to you. taged and the poor. This doesn’t mean stant vigilance to make sure they are You are out of luck as you face mount- that Judge Alito never rules in favor of enforced and maintained. That com- ing medical bills without any source of an individual suing the government for mitment for vigilance is one of the income. an unlawful search or a minority suing characteristics that should leap out in This is not hypothetical. That is the a corporation for unlawful discrimina- a Supreme Court nominee. decision he made. Health care is a very tion. But it does mean that in the over- We should remember that even real problem for many more Americans whelming majority of cases he has not. though the 13th, 14th, and 15th amend- than ever. Many of us have been push- And this raises the question of whether ments outlawed slavery, provided for ing for a national approach to health he approaches each case with an open equal protection under the law, guar- care for years. Our citizens can’t get mind or whether he comes with a bias anteed citizenship, and protected the the sick leave they need to take care of that can only be overcome in the rarest right to vote for African American themselves. They cannot get adequate of circumstances. Americans, the fact is the Federal Gov- health insurance—coverage isn’t what So why should the debate on Judge ernment took very little action to en- it should be. The Family Medical Samuel Alito continue now? Well, to force them until the 1960s. Few politi- Leave Act was a step in the right direc- begin with, there hasn’t been that cians were willing to take a stand—to tion to deal with family values and much debate on this nomination in the fight for the rights of African Ameri- health needs. It made sure that people first place—a nomination of extraor- cans. Something besides grassroots could take the time they needed when dinary consequence. It came to the pressure was ultimately needed to they became seriously ill without los- floor on Wednesday the 25th, and clo- prompt the Congress into action. That ing their income. It was enacted with ture was filed the very next day on something was the unanimous Supreme overwhelming bipartisan support in a Thursday. To this moment, not more Court decision in Brown v. Board of 71 to 27 vote. But if Judge Alito were than 25 Democratic Senators have had Education. on the Supreme Court and he follows a chance to speak. At this time, the Imagine if the Court had not enforced his own precedent, it would no longer Senate has spent a total of 25 hours on the equality guaranteed by the 14th protect State employees. a nomination that will last a lifetime. amendment. Imagine if it still had the So I ask my colleagues who voted for The direction our country will take ideological outlook it had when Plessy the Family Medical Leave Act: didn’t for the next 30 years is being set now was decided. Or when Dredd Scott was we do exactly want we meant to do? and this is the time for debate. This is decided. Two of the most ideologically Didn’t we need to protect all workers? the time when it counts. Not after the driven—and regrettable—decisions So is it right, now, to put a person on

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00014 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.039 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S273 the Supreme Court who will undo the Where do you come out on this? sion. Two of Judge Alito’s colleagues good that we did with that legislation? Which view do you want on our Su- believed that Mr. Glass should have Take another example. Many of us preme Court? been allowed to present the evidence of have talked on the floor about how Let me also share another story this racial discrimination to the jury. Judge Alito routinely defers to exces- one about Beryl Bray. Beryl was an Af- Judge Alito, however, disagreed. He sive government power. And how he is rican-American female who worked her thought that allowing Mr. Glass to tell willing to overlook clear fourth amend- way up from a room attendant to a his side of the story might cause ‘‘sub- ment violations in the process. This Housekeeping manager for Marriott stantial unfair prejudice.’’ He called may seem abstract to a lot of people Hotels in less than three years. When the trial judge’s refusal to allow Mr. right now, but listen to the facts of the position of Director of Services Glass’s evidence ‘‘harmless.’’ this case. opened up, Beryl applied. A Caucasian Harmless. Was it harmless to Mr. A family of farmers, the Mellotts, woman got the job, and Beryl sued Glass? What do you think? Do you fell on hard times. They had to declare claiming discrimination. think its harmless error to keep a dis- bankruptcy and were ordered to leave Now, as a Housekeeping manager, crimination plaintiff from showing evi- their farm—like a lot of farmers these Beryl probably did not make a lot of dence of discrimination? I think most reasonable people would disagree with days. They asked for permission to ap- money. She probably used a lot of her Judge Alito. peal and were denied. They asked that resources to bring her discrimination claim. She wanted her day in court. If I believe that is the problem here: the judge be disqualified and were de- Judge Alito has demonstrated a pat- nied. They didn’t accept the eviction Judge Alito had his way, she wouldn’t have gotten it. Critical facts were in tern of looking at discrimination order and refused to leave their farm. claims with a high degree of skep- So the marshals were sent to evict dispute. Facts which, if resolved as Beryl claimed they should be, would es- ticism. In the dozens of employment them. discrimination cases involving race When Bonnie Mellott answered the tablish a clear case of discrimination. As the lawyers here know, the factual that Judge Alito has participated in, front door, a deputy marshal entered, he ruled in favor of African Americans pointed his gun ‘‘right in her face,’’ disputes should have been resolved by a jury of her peers. Beryl was entitled to on the merits in only two instances. He pushed her into a chair, and kept his has never authored a majority opinion gun aimed at her for the remainder of her day in court. Judge Alito, however, did not agree. He would have resolved favoring African Americans in such the eviction. Another deputy entered, cases. He has dissented from rulings of ‘‘pumped a round into the barrel’’ of the facts on his own in favor of Mar- riott Hotels. He would have ended the his colleagues in favor of African- his sawed-off shotgun, pointed it at American plaintiffs, and in doing so Wilkie Mellott, and told him ‘‘to sit case then and there. Or let’s talk about Harold Glass. Mr. has required an unrealistic amount of still, not move and to keep his mouth Glass worked at Philadelphia Electric evidence before he is willing to step in shut.’’ When he did this, the marshals Company, of PECO as it is known, for on behalf of wronged individuals. He is knew Wilkie Mellott was recovering 23 years before he retired. While work- not willing to give them the benefit of from heart surgery. ing full-time, Harold attended school the doubt even to just let a jury decide But that wasn’t all. Another marshal to improve his career opportunities. their case. ran into the kitchen where a guest was Over the years, he earned two associate This is an unacceptable view of the on the telephone with a local sheriff. degrees, a bachelor of science degree in way our country works. Americans He ‘‘pumped’’ his semi-automatic gun, industrial and management engineer- know that what sets us apart from al- ‘‘stuck it right in [her] face and . . . ing and a bachelor of science degree in most any other country is the right of said: ‘Who are you talking to, hang up engineering. any citizen no matter where they come the phone.’’’ When she continued talk- In addition to his full-time work and from, what their lot in life is to have ing, the marshal put his gun ‘‘to the continuing education, Harold was a their day in court. That is what makes back of her head’’ and repeated the long-time activist on behalf of PECO America special. This little guy can order. employees. In 1968, he helped organize hold the big corporations accountable. I won’t go into further details, but the Black Grievance Committee to re- Our nation is defined by the great you get the picture. Now obviously the spond to problems of racial fairness, in- struggle of individuals to earn and pro- Mellotts were in the wrong to stay in cluding inadequate representation of tect their rights—particularly the dis- their farm. They were ordered by the minorities by PECO’s uncertified labor advantaged. We have worked hard to court to leave, and they should have. organization. He served as an officer. ensure that no one is denied their civil We all understand that. He represented employees in handling rights. Judge Alito’s track record casts But there is no fact in evidence sug- routine individual grievances before serious doubt on his commitment to gesting that once the marshals got in management and negotiated with man- that struggle. The legislation we pass the house there was resistance—no agement about employee concerns. In protecting individuals against dis- facts suggesting there was need for addition, he took the lead in organizing crimination requires the courts to fully force or intimidation. Nothing justified witnesses in three legal actions against enforce it. And we just don’t keep faith running into a house, waiving sawed- PECO concerning racially discrimina- with ourselves if we empower individ- off shotguns and screaming at the oc- tory employment practices. uals to sue large corporations who act cupants. These folks weren’t criminals. Over the years, Harold applied for unlawfully and then have the courts They weren’t armed. They weren’t re- promotions to new positions, but each refuse to hold them accountable. Judge Alito’s hostility to civil rights sisting arrest. You know what, it is time he was rejected. In addition, he claims is not my observation alone. It tough enough to get kicked off your was not able to apply for positions he is an observation shared by many peo- property; it is another thing to be would have liked to have because they ple who have reviewed his record. Let’s treated like a felon, absent cause, with were never posted by the company. not forget that after reviewing more pumped shotguns shoved in your face. This despite the fact that, in 23 years than 400 of Judge Alito’s opinions, law Most reasonable people would conclude of employment with PECO, Harold re- professors at Yale Law School—Judge that the government’s actions were ex- ceived only one performance evalua- Alito’s alma matter—concluded that: cessive. But Judge Alito did not, and tion which was less than fully satisfac- he wrote the majority opinion for two tory—when he was serving as a junior In the area of civil rights law, Judge Alito of the three judges hearing the case consistently has used procedural and evi- technical assistant. Harold claimed dentiary standards to rule against female, calling the law enforcement conduct that racial harassment at that time minority, age and disability claimants. . . reasonable. The dissenting judge dis- from his coworkers and a hostile work Judge Alito seems relatively willing to defer agreed. He said that once the marshals environment had affected his job. But to the claims of employers and the govern- arrived and realized that the Mellotts the trial judge did not allow him to ment, over those advancing civil rights were neither armed nor dangerous, the demonstrate these facts. claims. use of force was ‘‘clearly not objec- On appeal, a divided three-judge That is the opinion of those who have tively reasonable.’’ panel reversed the trial judge’s deci- studied his record. Similarly, Knight-

VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00015 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.040 S30JAPT1 ycherry on PROD1PC64 with SENATE S274 CONGRESSIONAL RECORD — SENATE January 30, 2006 Ridder concluded that Judge Alito it necessarily expands the scope of This is a lifetime appointment to a ‘‘has worked quietly but resolutely to Presidential power—and reduces the Court where nine individuals determine weave a conservative legal agenda into scope of Congress. what our Constitution protects and the fabric of the nation’s laws’’ and Judge Alito had numerous opportuni- what our laws mean. Once Judge Alito that he ‘‘seldom-sided with . . . an em- ties in the hearings to define the limits is confirmed, we can never take back ployee alleging discrimination or con- of the unitary executive, but he refused this vote. Not after he prevents many sumers suing big business.’’ to answer my colleagues’ questions. He Americans from having their discrimi- Judge Alito may believe that it is his didn’t answer when Senator LEAHY nation cases heard by a jury. Not after duty to keep these types of cases away asked him whether it would be con- he allows more government intrusions from the jury. He may, and in fact stitutional for the Congress to prohibit into our private lives. Not after he probably does, believe that he is doing Americans from using torture. He grants the President the power to ig- the right thing. That is his right. But, didn’t answer when Senator DURBIN nore Federal law under the guise of it is my right to judge the facts of asked whether he shared Justice Thom- protecting our national security. Not these cases and disagree. It is my right as’s view that a wartime President has after he shifts the ideological balance to say that the record of his reaction inherent powers—beyond those explic- of the Court far to the right. to the same facts should not be ele- itly given to Congress. He didn’t an- As I have said before, Judge Alito’s vated to the Supreme Court. swer when Senator FEINGOLD asked nomination was a direct result of the A fair amount has been said about what, if any, limits there are on the rightwing’s vehement attacks on Har- Judge Alito’s endorsement of the uni- President’s power. riet Miers, an accomplished lawyer tary executive theory. This is a com- We all understand that under article whose only failing was the absence of II, the President has primary responsi- plicated and somewhat abstract theory an ideologically bent record. The right- bility for the conduct of foreign affairs. of constitutional interpretation, but if wing didn’t wait for the next nominee. But, the idea that the President can it is ever endorsed by a majority of the The rightwing didn’t leave any of the simply disregard existing law or rede- Court, it will have a significant prac- tools in their arsenal unused. The fine statutory limits at will in the tical impact on our everyday lives. rightwing attacked with every option areas of foreign affairs, national secu- What it says is that the President available to them to prevent Harriet rity, and war is a startling one. And it alone is responsible for enforcing the Miers’ confirmation, secure in their laws. At its most simplistic, it seems is one that I cannot accept. We needed to know what limits conviction that it was the right thing somewhat reasonable: Congress makes Judge Alito would place on the execu- for them to do. the laws, the President enforces the tive branch. We needed him to go be- We believe no less. And we should do laws, and the judiciary interprets the yond simple recitations of Supreme no less. We did allow the confirmation laws. The theory, in fact, dates back to Court case law. We needed to know of three of the most objectionable ap- the administration of Franklin Roo- what he actually thought. pellate court nominees. There was no sevelt, and it has been championed by Sadly, however, Judge Alito did not talk of prolonged debate on Chief Jus- liberal and conservative scholars and give us those answers. In fact, he failed tice Roberts. Now we are presented administrations as a way of asserting to give us answers on many questions with a nominee whose record raises se- the President’s ability to retain con- of critical importance. He refused to rious doubt about serious questions trol over independent agencies. But, answer questions from Senator LEAHY, that will have a profound impact on ev- use of the theory in recent times has Senator KENNEDY, Senator FEINGOLD, eryday lives of Americans. What on been changing. and Senator BIDEN on the question of Earth are we waiting for? During Judge Alito’s tenure, the the power of the presidency. He refused Many on my side oppose this nomina- Reagan administration developed new to answer questions from Senator tion. They say they understand the uses for the theory. It was used to sup- SCHUMER, Senator DURBIN, and Senator threat he poses, but they argue that port claims of limitless presidential FEINSTEIN on whether Roe v. Wade was cloture is different. I don’t believe it is. power in the area of foreign affairs—in- settled law—an answer that even Chief It is the only way that those of us in cluding the actions that became the Justice Roberts was willing to give. He the minority have a voice in this de- Iran-contra affair. And, this view of refused to answer Senator LEAHY’s bate. It is the only way we can fully Presidential power has been carried on questions on court stripping; Senator complete our constitutional duty of ad- by the current Bush administration, LEAHY’s and Senator FEINSTEIN’s ques- vice and consent. It is the only way we claiming in Presidential signing state- tions on congressional power and the can stop a confirmation that we feel ments, that the President can ignore commerce clause; Senator FEINGOLD’s certain will cause irreversible damage antitorture legislation overwhelmingly questions on affirmative action and to our country. passed here in Congress. Not only is criminal law; Senator SCHUMER’s ques- I will oppose cloture on the nomina- the substance of that message incred- tions on immigration. tion of Judge Alito. And, I sincerely ible, but the idea that the President These are all questions about issues hope my colleagues will join me. can somehow alter congressional in- that routinely come before the Court. The PRESIDING OFFICER. The as- tent—the meaning of legislation agreed Judge Alito had an obligation to an- sistant majority leader is recognized. upon by 100 Senators—with a single swer them. He had an obligation to ex- Mr. MCCONNELL. Mr. President, I flick of a pen is absolutely ludicrous. It plain and clarify the positions he took rise today in support of the nomination turns the meaning of legislative intent in his speeches, judicial opinions, and of Samuel A. Alito, Jr., to be an Asso- on its head. Justice Department memoranda. But ciate Justice of the Supreme Court. We In the hearings, Judge Alito at- he did not. are familiar with Judge Alito’s aca- tempted to downplay the significance Why are we supposed to think that is demic and professional qualifications. of this theory by saying it did not ad- OK? Since when is it acceptable to se- He graduated from Princeton and Yale dress the scope of the power of the ex- cure a lifetime appointment to the Su- Law School, where he served as editor ecutive branch, but rather, addressed preme Court by hiding behind a smoke- of its prestigious Law Journal. He the question of who controls the execu- screen of nonanswers? spent his life serving his country as a tive branch. Don’t be fooled by that ex- I understand that, for many, voting captain in the Army Reserve, as an as- planation. The unitary executive the- for cloture on a judicial nomination is sistant, and then as U.S. attorney in ory has everything to do with the scope a very difficult decision, particularly New Jersey, and for the past 15 years as of executive power. on this Supreme Court nominee. I also a distinguished judge on the Third Cir- In fact, even Stephen Calabresi, one understand that, for some of you, a cuit Court of Appeals, to name a few of of the fathers of the theory, has stated nomination must be an ‘‘extraordinary his qualifications with which we are all that ‘‘[t]he practical consequence of circumstance’’ in order to justify that quite familiar at this point in the proc- this theory is dramatic.’’ It is just vote. I believe this nomination is an ess. common sense that if the unitary exec- extraordinary circumstance. What Equally important is his deserved utive theory means that the President could possibly be more important than reputation for fairness and for integ- can ignore laws that Congress passes, this? rity and his measured approach to the

VerDate Aug 31 2005 00:16 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00016 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.041 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S275 law. The American Bar Association, Judge Becker noted that Judge Alito achievement would command a large hardly a bastion of conservatism, found is ‘‘very principled, very analytical, bipartisan majority of support. Now it this out during its exhaustive review of never decides more than he has to in a appears Judge Alito will not get that its record. The ABA solicited the views case. He does believe in judicial re- tomorrow. Why is that? It is because of 2,000 people, including 130 Federal straint in the way he writes opinions, there has been a change in the stand- judges and every Supreme Court Jus- with no ideological overtones.’’ ards by which the Senate considers tice. After that, the ABA awarded The Third Circuit current chief qualified judicial nominees. In my Judge Alito its highest rating, unani- judge, Anthony Scirica, succinctly view, it has not been a change for the mously well qualified. What that said: better. means is that every member of the . . . whatever quality you think a judge According to the New York Times, in committee of the ABA gave Judge ought to have, whether it’s scholarship or an early 2001, some of our Democratic col- Alito the highest possible mark. It is ability to deliberate, or fairness or temper- leagues attended a retreat where law like getting straight A+’s on your re- ance, Sam has each one of these to the high- professors such as Larry Tribe and Cass est degree. port card. Sunstein implored them to ‘‘change the Let me repeat that since some who That is the current chief judge of the ground rules’’ with respect to how the are watching and listening have un- Third Circuit. Senate considered judicial nominees by doubtedly heard the attacks by Judge These reflections, which include injecting a political ideology test into Alito’s most vociferous opponents: The three former or current chief judges of the confirmation process. Soon after ABA, the largest professional associa- the Third Circuit, are echoed by Judge that meeting, some of our friends initi- tion of lawyers in the country, found Alito’s former law clerks, many of ated a premeditated and sustained ef- Judge Alito to be unanimously well whom are self-described committed fort of serial filibusters of circuit court qualified for the Supreme Court. In the Democrats. Jeff Wasserstein clerked nominees. We saw a lot them. Those past, this rating was referred to by our for Judge Alito in 1998. Here is what he most passionate for this tactic thereby friends on the other side of the aisle as had to say: wrote a new and sad chapter into the the gold standard. I am a Democrat who always votes Demo- pages of Senate history. More insightful than the ABA’s rat- cratic, except when I vote for a green can- Like many Republicans and Demo- ing is the testimonials of those who didate—but Judge Alito was not interested crats, I had hoped this sad chapter of know Judge Alito best, his colleagues in the ideology of his clerks. He didn’t decide trying to deny judicial nominees a sim- cases based on ideology. and his coworkers. Although they pos- ple up-or-down vote would recede into sess different political philosophies, Mr. Wasserstein recounts how in one memory as a mere footnote in a long Judge Alito’s colleagues enthusiasti- criminal case the defense attorney had and proud history of the Senate. Unfor- cally praise him as ‘‘thoughtful, intel- submitted a sloppy brief while the tunately, today some are trying to re- ligent, and fair’’ and a judge who ‘‘has prosecutor had submitted a neat, pre- vive it with the Alito nomination. a great respect for precedent-setting sentable brief. Mr. Wasserstein says We stand today on the brink of a new decisions.’’ To most people, that that in his youth and naivete he sug- and reckless effort by a few to deny the sounds like the kind of Justice we gested to Judge Alito it would be easy rights of many to exercise our con- would want on the Supreme Court. to decide the case for the Government. stitutional duty to advise and consent, Judge Timothy Lewis served with But Judge Alito stopped him ‘‘cold by to give this man the simple up-or-down Judge Alito for 7 years during which saying that was an unfair attitude to vote he deserves. The Senate should re- Judge Lewis typically voted with the have before I had even read the briefs pudiate this tactic, and it will have an court’s liberal members. He recounted carefully and conducted the necessary opportunity to do that at 4:30 this how when he joined the Third Circuit additional research needed to ensure afternoon. in 1992 he consulted his mentor, the that the defendant had received a fair There is a role for the filibuster for late Judge A. Leon Higginbotham, Jr., hearing.’’ legislative matters. Although I may who was a Carter appointee, a former Mr. Wasserstein’s simple anecdote il- disagree with its application in a par- chief judge of the court and a scholar lustrates how Judge Alito approaches ticular legislative case, I neither deny of U.S. racial history. According to each case fairly and with an open mind. the tactic nor begrudge it when a col- Judge Lewis, Judge Higginbotham said: He observes that Judge Alito has a ‘‘re- league employs that tactic when there Sam Alito is my favorite judge to sit with strained approach to the law.’’ is good reason to do so. I have done so on this court. He is a wonderful judge and a Another former law clerk, Kate terrific human being. Sam Alito is my kind on many occasions myself. I have not of conservative. He is intellectually honest. Pringle, who worked for Senator seen a good reason for employing it in He doesn’t have an agenda. He is not an ideo- KERRY, whom we heard speak a few the context of judicial nominations. logue. moments ago, for his Presidential cam- Nor did any Senate prior to the last That is the late Judge Leon paign, describes herself as a left-lean- Congress find that tactic should be em- Higginbotham. Judge Lewis added his ing Democrat and a big fan of Judge ployed for judicial nominations. own experience bore out Judge Alito’s. She rejects the notion that It certainly is not warranted in the Higginbotham’s evaluation. Judge Judge Alito is an ideologue, stating he case of Judge Alito. He is clearly quali- Lewis said Sam Alito ‘‘does not have ‘‘pays attention to the facts of the fied. His friends, his peers, and, indeed, an agenda’’ and ‘‘is not result-oriented. cases and applies the law in a careful his entire life story tell us so. He is an honest conservative judge who way. He is a conservative in that sense. During his hearings and despite the believes in judicial restraint and judi- His opinions don’t demonstrate an ide- best efforts of those opposed to his cial deference.’’ He ‘‘faithfully showed ological slant.’’ nomination, he acquitted himself ad- a deference and deep respect for prece- That is Kate Pringle, law clerk of mirably. Over 18 hours of testimony he dent.’’ Judge Alito and Kerry supporter for was asked 677 questions and was able to That is liberal Judge Lewis of the President in 2004. answer 659 of them—truly an impres- Third Circuit. In light of the accolades from those sive feat. In doing so, Judge Alito dem- Another former chief judge of the who know him best, in light of his bril- onstrated an impressive command of Third Circuit, Edward Becker, simi- liant academic and professional the law and a model judicial tempera- larly praised Judge Alito. Here is what achievement, in light of receiving the ment. he had to say: highest possible rating by America’s Now, while Judge Alito conducted I found him to be a guy who approached largest association of his peers, the himself with grace and dignity, unfor- every case with an open mind. I never found ABA, I was hopeful the Senate would tunately, some Senators did not. In him to have an agenda. I suppose the best ex- provide Judge Alito with a fair and dig- fact, those who listened most atten- ample of this is in the area of criminal pro- nified process. Sadly, this has not been tively to the outside pressure groups, cedure. He was a former U.S. attorney, but he never came to a case with a bias in favor the case. such as one whose top lobbyist declared of the prosecution. If there was an error in In the Senate we have known for over ‘‘you name it, we’ll do it to defeat the trial, or a flawed search, he would vote 200 years, a judicial nominee with Judge Alito,’’ could have learned a to reverse. Judge Alito’s character, ability, and thing or two about grace and dignity

VerDate Aug 31 2005 00:16 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00017 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.019 S30JAPT1 ycherry on PROD1PC64 with SENATE S276 CONGRESSIONAL RECORD — SENATE January 30, 2006 by watching Judge Alito perform in the President’s nomination of Samuel A. Founders, lest that unique status per- face of the most absurd and baseless Alito, Jr. as Associate Justice of the mit judges to impose their own views charges. Supreme Court of the United States. I under the guise of judicial decisions, Despite the repeated efforts to cari- concur in that recommendation. I am without direct accountability to the cature Judge Alito, the public’s sup- convinced that Judge Alito will make American people. In a letter to Spencer port for him only increased. After the an outstanding addition to the Su- Roan, March 9, 1821, Jefferson stated: hearing, the only thing the American preme Court and will be faithful to his The great object of my fear is the federal public was concerned about with re- judicial oath in neutrally applying the judiciary. That body, like gravity, ever act- spect to Judge Alito was the some- law without imposing his personal, po- ing with noiseless foot and unalarming ad- times shabby treatment he received. litical or ideological views to cir- vance, [is] gaining ground step by step. . . . With Stephen Breyer and Ruth Bader cumvent the law or the Constitution. Let the eye of vigilance never be closed. Ginsburg, Republicans resisted playing First, I wish to commend Chairman And so that vigilance now rests upon base politics and instead measured SPECTER and my former colleagues on this body. Let us be vigilant in insist- those two nominees by the traditional the Judiciary Committee—including ing that justices of the Supreme Court, confirmation standard of integrity and the Presiding Officer—for conducting and all other Federal judges who are legal excellence and not a political ide- nomination hearings which established presented to us, are sufficiently com- ology standard. We did not grandstand clearly Judge Alito’s fitness to serve mitted to the rule of law. As I noted during my remarks con- on the colorful—to put it delicately— on the Nation’s highest Court. I fol- cerning the nomination of Chief Jus- statements Justice Ginsburg had made lowed closely Judge Alito’s responses tice Roberts at a time when too many decades before her nomination such as to questions during the hearings. I was of those in the judicial branch have possibly abolishing Mother’s Day and impressed by his profound patience, sought to use their lifetime tenured po- Father’s Day and statements about sincerity, and dedication to the ethical sition to advance their own personal, purported constitutional rights to restraints which compel all nominees ideological, or political preferences in prostitution and polygamy, to name a to refrain from prejudicing any matter deciding matters which come before few. Nor did Republicans seek to dis- which may come before the court. them; at a time when too many within qualify Judge Ginsburg from further Many of my colleagues have com- the legal, media and political elites judicial service because of her long- plained that Judge Alito ‘‘did not an- swer some questions.’’ Their real com- have sought to recast the role of the standing leadership of the ACLU and judiciary into a superlegislature, ap- the controversial positions it often plaint rather, is that they simply didn’t like his answers. Judge Alito proving of, and even urging judges to takes. supplant their views for those of the And Republicans did not succumb to quite properly declined, as have all elected representatives of the Amer- the idea of a reckless filibuster to gain prior nominees to the Court, to address ican people—we should be reminded the approbation of a newspaper or an in advance specific matters which may that such actions and such views on interest group. come before them. As Judge Alito stat- the part of some are anticonstitutional If Republicans had wanted to dema- ed: and contrary to the rule of law itself. gogue and defeat the Ginsburg nomina- If a judge or a judicial nominee announced before even reading the briefs or getting the Describing his own fidelity to the tion, we could have done the things to Constitution and to the rule of law, Justice Ginsburg that have been done case or hearing the argument what he or she thought about the ultimate legal issue, all of Judge Alito told the Committee on the to Judge Alito. In fact, with her highly that would be rendered meaningless, and Judiciary: controversial writings and advocacy people would lose all their respect for the ju- A judge can’t have an agenda. A judge for the ACLU, it would have been a lot dicial system, and with justification, be- can’t have a preferred outcome in any par- easier to do so, but we exercised self-re- cause that’s not the way in which members ticular case. And a judge certainly doesn’t straint and self-discipline for the good of the judiciary are supposed to go about the have a client. A judge’s only obligation—and of the country. work of deciding cases. it’s a solemn obligation—is to the rule of In conclusion, I implore my Demo- That statement, and the time-hon- law, and what that means is that in every cratic friends to consider that to en- ored concept which it embodies, is pro- single case, the judge has to do what the law gage in these tactics is neither fair nor foundly important. Surely, those of my requires. right. If this hyperpoliticization of the colleagues who have criticized Judge The standard for rendering advice judicial confirmation process con- Alito in this regard know better. Sure- and consent, which I outlined in my tinues, I fear in this moment we will ly, they do not want Justices on the statement concerning Chief Justice have institutionalized this behavior, Court to signal in advance how they Roberts, is the standard I will apply to and some day we will be hard pressed will rule on cases. To the extent they Judge Alito as well. That standard— not to employ political tests and tac- do, they will be judged by the Amer- demonstrated commitment to the rule tics against a Supreme Court nominee ican people as perverting our constitu- of law and fidelity to the Constitu- of a Democratic President. In that tional system itself. tion—is amply met by Samuel A. Alito, case, no one—Republican or Demo- Others have criticized Judge Alito Jr. I am pleased to support his nomina- crat—will have won. because he may hold personal, polit- tion and will certainly vote to confirm I urge my colleagues to desist in this ical, or ideological views. We all hold him as Associate Justice of the Su- tactic of turning the confirmation personal views. But the role of a judge, preme Court. I urge my colleagues to process of a judge into the functional unlike that of a legislator, is to apply do likewise. equivalent of a political campaign. It is the law without respect to his or her Make no mistake about it. The shortsighted, and we will mourn the personal, political, or ideological American people do not want to see an day this tactic became the norm. views. Judge Alito has demonstrated obstructionist attitude in their legisla- Mr. President, I suggest the absence not only his ability to do this during 15 tive body. The American people are not of a quorum. years of service as a judge on the benefited by an obstructionist attitude. The PRESIDING OFFICER. The United States Court of Appeals for the An obstructionist attitude towards clerk will call the roll. Third Circuit, but his commitment to Judge Alito means not moving forward The legislative clerk proceeded to this principle in responding to ques- with affirming a cloture vote and then call the roll. tions during his confirmation hearings. confirming Alito to be Associate Jus- Mr. CHAMBLISS. Mr. President, I Fidelity to the Constitution and tice of the Supreme Court. The Amer- ask unanimous consent that the order commitment to the rule of law without ican people are best served by a bipar- for the quorum call be rescinded. respect to one’s personal views is, at tisan attitude in this body. I hope when The PRESIDING OFFICER (Mr. the end of the day, the only principle the cloture vote is made at 4:30 we will HATCH). Without objection, it is so or- that provides legitimacy to the Federal see not just the 60 votes needed to not dered. judiciary—the only unelected branch of allow a filibuster but that we will see a Mr. CHAMBLISS. Mr. President, the our government. The unelected status strong bipartisan vote in support of Committee on the Judiciary has rec- of the judiciary was, correctly, viewed moving ahead with giving Judge Alito ommended that we consent to the with particular suspicion by the an up-or-down vote on the floor of the

VerDate Aug 31 2005 00:59 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00018 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.020 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S277 Senate. And tomorrow morning, when If you want good manufacturing jobs, one 2197, S. 2198, and S. 2199 as cosponsors, we consider the confirmation of Judge thing you could do is educate more engi- as well as Senator REED of Rhode Is- Alito, I certainly hope that once again neers. We had more sports exercise majors land who has asked to be added as a co- we will see a strong bipartisan vote graduate than electrical engineering majors sponsor of S. 2197, so that we now have last year. confirming Judge Alito as the next As- 54 cosponsors of these important pieces sociate Justice of the Supreme Court. Based on that statistic, he added: of legislation. I yield the floor. If you want to be the massage capital of The PRESIDING OFFICER. Without The PRESIDING OFFICER. The Sen- the world, you are well on your way. objection, it is so ordered. ator from New Mexico. That is very interesting. With that, Mr. ALEXANDER. Mr. President, I Mr. DOMENICI. Mr. President, how out of my time, I yield to the Senator ask unanimous consent that a letter much time does the Senator from New from Tennessee 3 or 4 minutes to speak from Senator BINGAMAN and myself, Mexico have allotted? to this bill, which is called the PACE encouraged by Senator DOMENICI, to The PRESIDING OFFICER. The ma- legislation. the National Academy of Sciences on jority controls the time until 2 p.m. The PRESIDING OFFICER. The Sen- May 27, 2005, and a two-page summary Mr. DOMENICI. I yield myself the ator from Tennessee is recognized. of the Domenici-Bingaman-Alexander- time until 5 minutes of 2, and I ask Mr. ALEXANDER. Mr. President, I Mikulski legislation, which has 54 co- unanimous consent that Senator ALEX- thank the Senator from New Mexico. sponsors, be printed in the RECORD. ANDER and I be permitted to use 5 min- First, there is nothing more important, There being no objection, the mate- utes of that time to speak to an unre- along with the war on terror, than find- rial was ordered to be printed in the lated subject. ing a way to keep our jobs from going RECORD, as follows: The PRESIDING OFFICER. Without to China, India, and other countries U.S. SENATE, objection, it is so ordered. around the world. They have figured Washington, DC, May 27, 2005. PROTECTING AMERICA’S COMPETITIVE EDGE out how to increase their standard of Dr. BRUCE ALBERTS, Mr. DOMENICI. Mr. President, today living, and it has to do with brain- President, National Academy of Sciences, Washington, DC. I rise to speak about a very important power. DEAR DR. ALBERTS: The Energy Sub- issue, the competitiveness of the What I want to say today is, first, I committee of the Senate Energy and Natural United States and our future standard congratulate Senator DOMENICI, with- Resources Committee has been given the of living and whether we are going to out whose leadership this would not latitude by Chairman Pete Domenici to hold develop the brainpower in America to have gotten to first base. He encour- a series of hearings to identify specific steps meet the challenges of the future. aged Senator BINGAMAN and I to go to our government should take to ensure the I compliment two Senators who initi- work. He got our meeting with the preeminence of America’s scientific and technological enterprise. ated this endeavor—LAMAR ALEXANDER President. It was he who presided over The National Academies could provide of Tennessee and JEFF BINGAMAN of our homework sessions with the ad- critical assistance in this effort by assem- New Mexico. They asked me, as chair- ministration. It is he who has taken bling some of the best minds in the scientific man of the Energy Committee, if they the leadership with Senator BINGAMAN and technical community to identify the could pursue a study with rec- on this bill to have 55 cosponsors prior most urgent challenges the United States ommendations about how to achieve to the President’s speech tomorrow faces in maintaining leadership in key areas night. So I thank him first. of science and technology. Specifically, we competitiveness. They did that. Now would appreciate a report from the National we have the results of that evaluation Second, I reiterate where this idea Academies by September 2005 that addresses in a major report hereinafter to be came from. It came not from Senators, the following: called the Augustine report, named not from lobbyists, nor from this or Is it essential for the United States to be after Dr. Augustine, former president that clique. Senator BINGAMAN and I at the forefront of research in broad areas of of Lockheed Martin. Many people know asked the people who should know—the science and engineering? How does this lead- of him in many capacities. That report experts at the National Academies— ership translate into concrete benefits as sthe answer to this question: exactly evidenced by the competitiveness of Amer- recommends 20 specific ideas to get ican businesses and an ability to meet key America back on the track of competi- what do we need to do to keep our ad- goals such as strengthening national secu- tiveness in the world. vantage in science and technology over rity and homeland security, improving Today I want to tell Senators and the the next 10 years so we can keep our health, protecting the environment, and re- world that in a day of confrontation jobs? They answered that question ducing dependence on imported oil? and partisanship the implementation with 20 specific recommendations in- What specific steps are needed to ensure of that study is encapsulated in three volving kindergarten through the 12th that the United States maintains its leader- grade education, higher education, ship in science and engineering to enable us bills. The bills now have 53 cosponsors. to successfully compete, prosper, and be se- Of those, 29 are Republicans, 24 are basic research, maintaining an entre- cure in the global community of the 21st cen- Democrats. The bills are S. 2197, S. preneurial environment. These are tury? How can we determine whether total 2198, and S. 2199. Three Senators of the ideas that many Senators on both sides federal research investment is adequate, 23 have cosponsored only one portion. of the aisle have advocated for several whether it is properly balanced among re- At this early date, to have that many years, but the fact that the National search disciplines (considering both tradi- cosponsors is rather historic. This Academy of Sciences, the Institute of tional research areas and new multidisci- means we are going to proceed with the Medicine, and the National Academy of plinary fields such as nanotechnology), and between basic and applied research? legislation. I am going to yield some Engineering joined together to say How do we ensure that the United States time now to the distinguished Senator ‘‘here is the blueprint’’ is the reason remains at the epicenter of the ongoing revo- from Tennessee, closing by saying that this idea has gone so far. What it does lution in research and innovation that is the essence of this report says: Amer- is help keep our edge in science and driving 21st century economies? How can we ica, produce better brainpower in technology. assure investors that America is the pre- math, science, and physics; produce I am looking forward to the Presi- ferred site for investments in new or ex- more engineers of all types; produce dent’s remarks tomorrow night. It is panded businesses that create the best jobs and provide the best services? more research in basic science; cause my hope that he makes the Augustine How can we ensure that critical discoveries business to invest through tax cred- report and the whole idea of keeping across all the scientific disciplines are pre- its—and do it as soon as possible. With- America on top and keeping our edge dominantly American and exploited first by out this, the report says, we will per- in science and technology a focus of his firms producing and hiring in America? How ish. speech and of his next 3 years. can we best encourage domestic firms to in- Lastly, I want my friend from Ten- So it is my privilege today to ask vest in invention and innovation to meet nessee to listen to just one fact. We unanimous consent on behalf of Sen- new global competition and how can public have at various times attempted to ators DOMENICI, BINGAMAN, and myself research investments best supplement these private sector investments? equate what we do with what we ought to add as cosponsors Senators LAUTEN- What specific steps are needed to develop a to do. Jeffrey Immelt, CEO of GE, re- BERG, JOHNSON, MCCONNELL, SNOWE, well-educated workforce able to successfully cently shocked a DC audience with a and now Senator SPECTER of Pennsyl- embrace the rapid pace of technological troubling statistic. He said: vania, who have asked to be added to S. change?

VerDate Aug 31 2005 00:59 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00019 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.022 S30JAPT1 ycherry on PROD1PC64 with SENATE S278 CONGRESSIONAL RECORD — SENATE January 30, 2006 Your answers to these questions will help ets to be devoted to high-risk, high-payoff frastructure planning grants and loan guar- Congress design effective programs to ensure research which falls outside the peer review antees so that U.S. science parks are com- that America remains at the forefront of sci- and budget allocation process. petitive with those throughout Asia. entific capability, thereby enhancing our Improving K–12 Science/Math Education Mr. DOMENICI. Mr. President, let me ability to shape and improve our nation’s fu- Scholarships for Future Teachers of Math say what a privilege it is today to ture. & Science: Each year, up to 10,000 bright stu- speak once again to the nomination of We look forward to reviewing the results of dents would receive a 4-year scholarship to your efforts. a Supreme Court Justice and to the ad- earn a bachelor’s degree in science, engineer- vice and consent function of the Sen- Sincerely, ing or math, while concurrently earning LAMAR ALEXANDER, teacher certification. In exchange for these ate. Chairman, Energy scholarships, they would be expected to serve I came here in 1972, so there have Subcommittee. for at least four years as a math or science been a lot of men and women nomi- JEFF BINGAMAN, teacher. nated to the Supreme Court of the Ranking Member, Math & Science Teacher Training Pro- United States. In my time here, I have Committee on En- grams: Funds part of the costs for new math voted to confirm them all. I based my ergy and Natural and science teacher training programs based Resources. vote, first, on the fact that the Presi- in math and science departments at univer- dent of the United States recommended sities across the country. These programs PACE ACT: PROTECTING AMERICA’S will stress a solid content knowledge of their them and second, on whether they were COMPETITIVE EDGE subject while also providing the training qualified. I determined whether they Focuses on keeping America’s science and necessary for teacher certification. were qualified based upon outside eval- technology edge—as much as 85 percent of Summer Academies for Teachers: National uations and personal observations of our per capita growth in incomes since World laboratories and universities across the those who knew, trained and taught War II has come from science and tech- country would host 1–2 week academies each that particular nominee. For example, nology. summer for up to 50,000 math and science I found Justices Ginsburg and Breyer, Helps America continue to set the PACE in teachers so they can get some hands-on expe- the competitive world marketplace. rience and take back new, improved ideas for who were confirmed 96-to-3 and 87-to-9, Keeps our brainpower edge by strength- energizing their students. to be qualified. In my opinion, neither ening K–12 math and science education, at- Advanced Placement Courses in Math & of those judges, based upon the way the tracting bright college students to the Science: The federal government would pro- Senate is doing things these days, sciences and investing in basic research. vide funding to help establish non-profit or- would have come close to getting those In a package of three bills, the PACE Act ganizations to promote Advanced Placement kinds of votes. As a matter of fact, for implements 20 recommendations contained (AP) classes in math and science—tripling those who threaten filibuster, I believe in an October report by the National Acad- the number of students who could join these emy of Science titled ‘‘Rising Above the college-preparatory programs that consist- there is a serious question. Gathering Storm.’’ ently produce the highest achievers. If filibusters would have been the Protecting America’s Competitive Edge Specialty Math & Science High Schools: rule of the day, at least one of those through Energy Act (PACE-Energy): Increas- States would be eligible to apply for a grant nominees might very well have been ing our investment in energy research and in from the federal government to help estab- filibustered, and the filibuster might educating future American scientists. lish a new high school specializing in math have been successful. But that wasn’t Protecting America’s Competitive Edge and science that students from across each the way things were done. through Education and Research (PACE- state could attend. Qualification was the question upon Education): Investing in current and future Internships and Summer Programs for math and science teachers and K–12 stu- Middle and High School Students: Provides which we based our decisions; that has dents, attracting bright international stu- unique internship and program opportunities changed. Rancor has taken the place of dents, and investing in non-energy related for middle and high school students at na- reason. Partisanship has taken the basic research. tional labs and other technology and sci- place of responsibility and fairness. At Protecting America’s Competitive Edge entific research facilities. every step of the process with this through Tax Incentives (PACE-Finance): Increasing the Talent Pool by Improving Higher nominee, the American people have Doubling the research & development tax Education seen what a confirmation process can credit and allowing a credit for employee Scholarships and Fellowships for Future education. turn into if it is not vested and fair, Scientists: Each year, up to 25,000 bright but is instead full of what can be con- KEY PROVISIONS OF THE PACE ACTS young Americans would receive a 4-year sidered as almost hatred, almost fire Strengthening the nation’s traditional commit- competitive scholarship to earn a bachelor’s ment to research degree in science, engineering or math, so and brimstone. Our colleagues have fo- cused on the negatives of everything, More research opportunities for scientists that our brightest students pursue studies in and engineers: Increases basic research these fields which are so critical to our eco- however small or irrelevant. Currently, spending by up to 10 percent per year for nomic growth. Up to 5,000 students who have the trend is not to do what we have seven years at several federal agencies, in- already earned their bachelor’s degree, done, which has resulted in some great cluding the national laboratories. This in- would compete to receive graduate research judges, but rather to be fed by the vestment would generate hundreds, maybe fellowships to cover education costs and pro- flames of partisan special interests thousands, of new inventions and high-tech vide a stipend. that want assurances—they want guar- companies. Attracting the Brightest Foreign Students to our Universities: Provides an efficient stu- antees. Targeted research grants for early career I personally believe this is a dan- scientists and engineers: Creates a special re- dent visa process for bright foreign students search fund for 200 outstanding young re- to come here to study math, technology, en- gerous course, and I hope and pray that searchers across the nation each year. gineering and science and then to stay here— this will be the last time we follow New federal funds to buy equipment and contributing to our economic growth rather such procedure. But I doubt that it will upgrade research laboratories: Provides a than being forced by an outdated immigra- be, although I believe such actions are special pool of funds for the nation’s re- tion system to go home and produce the best wrong. Rejecting the judicial philos- search infrastructure to purchase updated new technology in India or China. ophy tests being urged by some is abso- research equipment and upgrade lab capa- Growing our Economy by Providing Incentives lutely imperative. bilities. for Innovation When we apply the appropriate test A New Agency for Transformational En- Doubling the Research & Development Tax of qualification, there is no doubt that ergy Research: Establishes a new research Credit to Encourage Innovation: Doubles the agency within the Department of Energy current R&D tax credit and makes it perma- Judge Alito is qualified. He is qualified tasked with developing transformational en- nent—so companies conduct ground-break- to be a Supreme Court Justice. The ergy technologies that bridge the gap be- ing, job-producing research here, rather than American public realizes this and that tween scientific discovery and new energy building new facilities overseas. is why they overwhelmingly indicate innovations. This agency would be patterned Creating a Tax Credit to Encourage Em- that we should get on with this and on the management practices of a Pentagon ployers to Invest in Employees’ Education: vote. It is clear that there has been no research agency (DARPA) that contributed Establishes a new tax credit to cover costs nominee—and the occupant of the to innovations like the Internet, stealth from providing continuing education to em- chair has seen many—that has spread technology and global positioning systems. ployees—so employees can learn cutting- High-Risk, High-Payoff Research: Directs edge skills. before the eyes of the Congress and the federal research agencies to develop guide- Development of Science Parks: Supports public more about themselves, their lines that allow eight percent of R&D budg- the development of science parks through in- record, their philosophy, their vote,

VerDate Aug 31 2005 00:16 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00020 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.004 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S279 their rationale, and their ethics than has. But perhaps today we will invoke went so far as to change the rules so he this man. cloture, change things from where they could stay in his position after having The President, indeed, took a big are to where they should be, and with been indicted. They changed the rules chance with this nomination because an up-or-down vote tomorrow, this de- back because the hue and cry of the to have that much of a record and have serving, honest, well-informed, good American people was so intense. a vote and all that goes with it here man will be confirmed. For the first time in 135 years, some- was, indeed, a giant risk. But it paid I thank the Chair and I yield the one is indicted working in the White off because Judge Alito is what he pur- floor. House. Mr. Safavian, appointed by the ported to be—a scholarly, terrific The PRESIDING OFFICER. The President to handle Government con- judge, who is without any question, Democratic leader is recognized. tracting—hundreds of billions of dol- distinguished. Mr. REID. Mr. President, the Pre- lars a year—is led away from his office My second point concerns ‘‘guaran- siding Officer knows that I don’t al- in handcuffs as a result of his dealings tees.’’ I believe some members of the ways agree with him or he with me, with Jack Abramoff and others. Judiciary Committee questioned this but in response to the Senator from So I think in his speech, the Presi- judge in an effort to get some guaran- New Mexico about the process here, the dent is obligated to the American peo- tees about how he would vote. It is Presiding Officer was exemplary in how ple to show that he is committed to re- amazing to consider some of the Su- Justice Breyer and Justice Ginsburg storing the bonds of trust and repairing preme Court Justices who have been were chosen to be members of the Su- the damage done by this corruption. approved by the Senate based on their preme Court. There have been books Americans know the country can do testimony and their record, which were written about it and chapters of books better today, and after the year we presumed to be commitments or guar- written about it. had, a year of trying to privatize Social antees as to how they would vote. We The Presiding Officer, as chairman of Security, Katrina, failures in Iraq, can look back to Justice Warren from the Judiciary Committee, in commu- Terri Schiavo, and a heavy heart I California as well as two or three mem- nication with President Clinton, said: I have, Mr. President, as a result of how bers of the Court right now. Those who don’t like this person, this person, this a good woman was—I would not say de- voted for such judges could have, in- person. And so there was a process set stroyed because she was not; she is deed, thought they were getting guar- up, nonpublic in nature, where the stronger than that. But Harriet Miers, antees, and it has turned out not to be chairman of the Judiciary Committee how she was treated is unbelievable. A the case. Those judges’ philosophy, conferred with the President and his good woman was treated so poorly, and their votes, and everything else has people and waded through lots of the people who tried to destroy her are been different on the Court than what names that, in the judgment of the dis- the ones being rewarded now with the they appeared to be guaranteeing dur- tinguished Senator from Utah, were Alito nomination. Then, of course, this ing the confirmation process. not appropriate. Now we have two past year we had Medicare prescription There are no guarantees. Those who Members on the Supreme Court whom drugs come into being, which is a puz- are making this a partisan fight won’t I think have distinguished themselves. zle that no one can figure out. say: We don’t have any guarantees, on I wish we could have a procedure like So the American people, after this Roe v. Wade and many other issues, that in the future. I think, I repeat, it year we have had, simply will no longer that Judge Alito will vote the way we was exemplary. That is the way things be able to blindly accept the Presi- want him to—they won’t say they are used to be done. I would hope in the fu- dent’s promises and give him the ben- doing that. They will use other words ture that the President’s men and efit of the doubt. like ‘‘I am bothered,’’ but that is really women would be willing to meet with Americans will be looking past his their argument. their counterparts in the Senate and rhetoric tomorrow night and taking a Now, as to the cloture vote this come up with a procedure that is some- hard look at the results he intends to afternoon—we are going to do that. I what along the lines of the distin- deliver. The President’s State of the have never had to make that vote in 34 guished Senator from Utah. I would Union Message is a credibility test. years—on 11 Supreme Court nominees. hope that would be the case. Will he acknowledge the real state of I never had to make that vote. Why? The hearings of Ginsburg and Breyer our Union and offer to take our coun- Because this Senate has not used the were short and directly to the point. I try down a path that unites us and filibuster on Supreme Court Justices. hope in the future we can do more of makes us stronger, or will he give us Some people say, oh, yes we have, or, that. I extend my applause and con- more of the same empty promises and yes, we almost did. But we did not, and gratulations to the Senator from Utah. partisanship that has weakened our we surely didn’t when a majority was No matter what happens in the future country and divided Americans for the for the man or woman. That is the case regarding the long career of the Sen- last 5 years? here. ator from Utah in the Senate, this, as If he takes the first approach, to- To have to take this route, I believe far as I am concerned, will be an impor- gether, Democrats and Republicans can the process is headed in the wrong di- tant chapter in his public service. build a stronger America. If he gives us rection. To require cloture is not the THE PRESIDENT’S STATE OF THE UNION more of the same empty promises and way to do it. It is not in tune with the MESSAGE Orwellian doublespeak, we know he in- history of the Senate. It contradicts Mr. President, tomorrow night, the tends to spend 2006 putting his political the significance of this body as a fair- President of the United States will fortunes ahead of America’s fortunes. minded, deliberative body. I regret to come to the Capitol and deliver his We need a fresh start, and I hope Presi- say that with no particular people in fifth State of the Union Address. This dent Bush realizes that tomorrow mind. If the shoe fits, fine. If it fits no is an important moment for the Presi- night. one, fine. But this has turned into dent and for the country. Some say, There is much more at stake in his nothing more than a political war. reading the op-eds over the last week speech than poll numbers. Empty Those who are going to vote to con- or so, this may be the most difficult promises will no longer work. We need tinue debate, many of them know that speech the President will ever give. a credible roadmap for our future, and this man is as qualified as anyone we The President comes to the Capitol we need the President to tell us how are going to get. He is as assured to in the midst of also what some write together we can achieve the better make as good of decisions on behalf of about as the greatest culture of corrup- America we all deserve. the American people as anyone we are tion since Watergate. Public trust has Our first signal that the President in- going to get. And he is equally as as- dropped significantly in this culture in tends to move our country forward will sured to vote different than many of us Washington, and I need not run come in his assessment of the state of who will vote for or against him ex- through all the problems, but I will run our Union. It is not credible for the pect. Of that, I have no doubt. through some of them. President to suggest the state of the I regret that it has taken us so long The majority leader in the House of Union is as strong as it should be. The to confirm Judge Alito. I regret that it Representatives was convicted three fact is, America can do much better. has turned into the spectacle that it times of ethics violations. They even From health care to national security,

VerDate Aug 31 2005 00:16 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00021 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.024 S30JAPT1 ycherry on PROD1PC64 with SENATE S280 CONGRESSIONAL RECORD — SENATE January 30, 2006 this Republican corruption in Wash- As a result, he is gone. We don’t proportions. There are 46 million ington has taken its toll on our coun- know where he is, and he continues to Americans with no health insurance try. We can see it in the state of our threaten us today in his taunting, vi- and millions more who are under- Union. cious, evil manner. insured. What is the state of our Union? The Then there is the President’s ‘‘axis of The cost of health care premiums has state of our Union is that we are less evil.’’ Four years ago, the President de- doubled since 2001. Manufacturing gi- safe in this world than we were 41⁄2 clared Iraq, Iran, and North Korea an ants, such as Ford and General Motors, years ago because the White House has ‘‘axis of evil’’ whose nuclear threats are laying off tens of thousands of peo- decided protecting its political power posed risk to the American people, and ple for lots of reasons, but one reason is more important than protecting the he was right. Well, mostly right. In- is health care costs have skyrocketed. American people. stead of pursuing the correct policy to With a record such as that, it is not We are the wealthiest Nation in the make it safer, he invaded Iraq. Now credible for the President to claim he history of the world. Shouldn’t we be two members of the ‘‘axis of evil’’— has a vision to make health care af- the healthiest? Frankly, we are not be- North Korea and Iran—are more dan- fordable. He needs to present us new cause this administration decided to gerous, and after spending billions of ideas that will move America forward, take care of the big pharmaceutical dollars and losing 2,300 American lives, not trot out the same tired old policies companies, the drug companies, the we found out that the third, Iraq, that serve special interests and not the HMOs, managed care, instead of 46 mil- didn’t pose a nuclear threat at all. American people. Press reports, I fear, lion uninsured. Then there is what this President has indicate we are in for the same old We have a national debt climbing done to our military. Not only has he tired ideas. It is rumored that Presi- past $8 trillion. I have a letter I re- failed to properly equip our troops for dent Bush will again focus on some- ceived a short time ago from the Sec- battle—we know the stories are all thing called health savings accounts. This administration has taught me retary of the Treasury saying the debt over the country about 80 percent of that what I learned in college studying is at $8.2 trillion and we need to raise our people who have been injured—that George Orwell has some validity today. it more. Over $9 trillion is what they is 18,000 and 2,300 dead—80 percent of We have Orwellian doublespeak such as are asking because the President them would have been hurt less, many the Healthy Forests Initiative, one squandered the strongest economy in lives would have been saved had they piece of legislation that was for the history of this country with reck- had the body armor that was available. clearcutting of trees and other things less spending and irresponsible tax According to the Pentagon’s inde- to make our forests less healthy; our breaks for special interests and multi- pendent studies, the Pentagon is Clear Skies Initiative, which polluted millionaires. stretched—stretched in a manner, as the skies; Leave No Child Behind, We have an addiction to foreign oil indicated in the paper today, as having which is leaving children behind; and that has climbed steadily over the last mass advancements in rank, which the Deficit Reduction Act of 2005. Talk 4 years and doubled the price of heat they have never done before, because about Orwellian doublespeak; using the for our homes and gas for our cars be- they are trying to keep people in the President’s own numbers, the Deficit cause the Vice President let big oil military, among other things. Our Reduction Act increased the deficit by companies write our energy policy. forces are stretched entirely too thin. $50 billion. And we have too many middle-class The President’s poor planning and re- Now he comes up with Health Sav- families living literally on the finan- fusal to change course in Iraq has made ings Accounts. That is classic Bush cial cliff. All statistics show the rich progress in 2006 harder to achieve. He doublespeak. It is not a credible solu- are getting richer, the poor are getting has made it more difficult to spread de- tion to the health care crisis. This plan poorer, and the middle class is squeez- mocracy around the world because he will force most Americans to spend ing smaller and smaller all the time. has been undermining it right here at more on health care while making it The economic policies of this admin- home. less available to millions of others. istration over 5 years has placed the As Katrina made clear, he failed in HSAs are nothing more than another needs of the wealthy and well con- the 4 years after 9/11 to prepare Amer- giveaway to the same people the Presi- nected ahead of working Americans. ica for the threats we face. New Orle- dent has favored over hard-working If President Bush is committed to ans could have been anyplace in Amer- Americans for the past 5 years. In fact, making America stronger, he will ac- ica. The difference with Katrina is we remember Social Security privatiza- knowledge these facts Tuesday night. had warning it was coming. But other tion? HSAs, or Health Savings Ac- He will admit the steep price Ameri- threats, that won’t be the case. counts, are a lot like that. They do cans have paid for this corruption, and America can do better. Tomorrow nothing to solve the real problem. he will proceed to tell us how he can night, the President needs to provide a They make the situation worse for the make our country stronger. new way forward. Partisan attacks will American people and they create a fi- Our second clue that the President is only divide us. What we need is for the nancial windfall for the President’s committed to moving America forward President to rally the country around friends: HMOs, insurance companies will come in his remarks about na- our most important goal: protecting and, of course, Wall Street, that will tional security. Tomorrow night, it is our people and our way of life. set up all these accounts. not credible for the President to tell us Democrats have always been willing We do not need the President to offer he has done all he can to keep Ameri- to work with President Bush to make more of the same on health care. We cans safe for the last 5 years. We know America more secure. We know our na- saw with the President’s Medicare pre- that because we have had vote after tional security policy is not the place scription drug plan that his policies vote on the Senate floor to take care of for political games. Democrats look too often put special interests ahead of our chemical plants, our nuclear power forward to hearing how the Com- the American people. Ask any senior facilities, to check the cargo coming mander in Chief will govern and hope citizen today about how the Medicare into this country, what is in the belly we have seen the swagger and partisan- plan has helped them. Even if they of that airplane in the cargo, and vote ship of the ‘‘campaigner in chief’’ for could work a crossword puzzle out of after vote, on a strictly party-line the last time. the New York Times on Sunday, which basis, we have lost. Our third signal that President Bush is the hardest, day after day after day, For all of this tough talk, President understands what it will take to make they still couldn’t solve the Medicare Bush’s policies have made America less the State of the Union strong will Program of President Bush. It is im- safe. His failed record speaks for itself. come when he talks about health care. possible. Osama bin Laden, the man who at- Again, we are the wealthiest Nation in What we need is a new direction, one tacked us on 9/11, remains on the loose the history of the world. Shouldn’t we that puts families first. Democrats be- because, in his rush to invade Iraq, the be the healthiest? We are not. Because lieve that addressing the health care President took his eye off the ball of the President’s inaction on health crisis is not just a moral imperative, when we had him cornered in a place care over the last 5 years, America but it is also vital to our economic se- called Tora Bora, Afghanistan. faces a health care crisis of staggering curity and leadership in the world.

VerDate Aug 31 2005 00:16 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00022 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.033 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S281 Every day we go without reform is an- energy independent. We need to hear We have a plan to reform Wash- other day America takes another step new economic ideas tomorrow night. ington. We need to bring it to the Sen- backward from a position as global The President needs to tell us how he ate floor. We need to do that. President leader. is going to begin paying down the debt, Bush has to join with us. Anything For our families, we must make his debt, so our children and our grand- less, we will know the President has no health care affordable and accessible. children do not pay the price for his interest in changing his ways and mak- For our businesses, we must remove reckless fiscal record. ing America stronger. the burden of skyrocketing costs that It is so startling to me that Repub- The President faces a tremendous is holding our businesses, our economy, licans—when I started my political ca- test tomorrow night. It is up to him to and our workers back in the global reer, they were the ones concerned prove to the American people he in- marketplace. about deficits. They have created tends to denounce the culture of cor- Our fourth clue that the President them. They don’t complain about ruption that has come to Washington knows what America needs will come them. It is stunning to me. The Presi- since he arrived and change direction in his remarks about the economy. dent has not vetoed a single spending in 2006. Democrats are ready to work After all we have seen in the past 5 bill. Of course, he hasn’t vetoed any- with President Bush in order to move years, it will not be credible for the thing, but why should he? We don’t our country forward because we believe President to claim our economy is have separate branches of Government that together, America can do better. growing, that his plan to reduce his while he is here; the Republican Con- So tomorrow night I hope President deficits—and I say his deficits—is gress does whatever he wants. Maybe Bush will join us in putting progress working, and that Congress is to blame beginning the sixth year that will not ahead of politics so we can have a for spending and bad decisions. The be the case. State of the Union that is as honest truth is, the fiscal nightmare we see We need the President to speak hon- and strong as the American people. today belongs to President Bush and estly about tax relief, about middle- The PRESIDING OFFICER (Mr. President Bush alone. class families and how they deal with SUNUNU). The Senator from New Jer- I love to watch golf on TV. I know I these energy prices. The truth about sey. Mr. LAUTENBERG. Mr. President, I am not like a lot of people, I should be the Bush tax cuts is multimillionaires rise today to discuss the President’s watching football or basketball or stand, with his newest proposal, to get nomination of Samuel A. Alito, Jr., to something. I love to watch golf on TV. over $100,000 while the average working the Supreme Court of the United It is a game of chess. Yesterday, Tiger family will receive pennies on that. States. I am pleased to have an oppor- Woods—this guy is fantastic. He is The President’s priorities are upside tunity to discuss this and to present seven strokes behind after the first down. It is time for him to join us and reasons why my conclusion is going to day. He has a bad day yesterday and bring fairness to our Tax Code. Democrats are ready to work with be as it is. wins the tournament. He has a bad day It is no secret that Judge Alito is President Bush, but he needs to com- and wins the tournament. from my home State and I was honored I mentioned records—he holds all mit to policies that put the needs of to introduce him to the Judiciary Com- kinds of records. That was the 47th hard-working Americans first. One mittee. I talked with him privately in tournament he won—quicker than any- final signal that President Bush is my office. He is an accomplished jurist one else, of course. He just turned 30 committed to making America strong- from a distinguished family in New years old. He won the Buick Open four er will come on the issue of reform. Be- Jersey, and at that hearing our col- times. That is what he won yesterday. cause of connections to the culture of league from Pennsylvania, Chairman He holds record after record. I mention corruption and stonewalling about ARLEN SPECTER, asked me if I was en- these records because President Bush Jack Abramoff, it is not credible for dorsing Judge Alito for this position holds all the records. The highest def- President Bush to claim the moral high and I told him I was just presenting icit, he holds them all. There is not a ground on values as an honest govern- evidence to the committee and I will close second. He has them all. ment. President Bush needs to set an let the record speak for itself. I was not It is not a record the American peo- example, if he is going to lead our going to make any prejudgments. I ple envy, such as that of Tiger Woods. country forward tomorrow night. He wanted to hear from Judge Alito. I His financial record has bankrupted needs to come clean about his connec- wanted to listen to his answers to my this country. We are going to be asked tions to corruption, with Abramoff—as colleagues’ questions. in a couple of days to increase the def- Republicans have called for. HAGEL, This nomination, as all are when it icit ceiling—over $8.2 trillion. THUNE—Republican Senators have comes to the Supreme Court, is an in- Here is another doublespeak Orwell called for this. Too many Republicans credibly important moment for our Na- would be proud of we are likely to hear have shown in recent days that we are tion—particularly because Judge Alito tomorrow night. I am sure we are going going to obscure the facts and move on. has been nominated to replace Justice to talk about the Bush competitive There is legislation pending. We do Sandra Day O’Connor. Justice O’Con- agenda. The President can talk all he not need a task force. We need Sen- nor, over the past 25 years, has proven wants about making America competi- ators LIEBERMAN and COLLINS to go she is not an ideologically conservative tive, but for 5 years he has done noth- ahead with the hearings and decide Justice or a liberal Justice. She has ing to keep America in the game. From what needs to be done. Our legislation not brought an agenda to the Court. what we have read in the press, this may not be perfect, but it is legislation That is why Justice O’Connor has been plan sounds like more empty rhetoric we need to start with. such an important swing vote—because from a President who has spent 5 years It is Republicans who control the she always studied the facts and the slashing the funding we need to stay on White House where men are willing to law and tried to apply them fairly. the cutting edge. He shut the doors to break the law and ignore America’s I did not always agree with her. But, thousands of college students by sup- best interests so they can protect their like many Americans, I knew she came porting cuts in student aid. He has al- political power. Safavian, Libby, at these legal questions fairly and with lowed our country to fall further be- Rove—it is Republicans who control an open mind. She showed respect for hind our trading partners. It is no acci- the Congress which sold its soul to spe- precedent. She put the law above her dent what is happening in South Amer- cial interests and a Republican right- personal beliefs. In my view, it is crit- ica. President Reagan, President Clin- wing base, a base that has its sights set ical that we replace Justice O’Connor ton, and the first President Bush on stacking our courts with extremist with someone who shares her open- worked hard to democratize Central judges. They have acknowledged that. minded approach of looking at the law and South America. These countries It has been K Street, the so-called K and the facts with no political agenda. are losing their democracy edge be- Street Project, that has conspired with Even the mere threat of legal activism cause we have so neglected them. lawmakers to put the well connected on this Supreme Court threatens the He has lavished billions on big oil in- first, going so far as having them not future of this country and the rights of stead of investing in American tech- hire Democrats to work as representa- our children, our grandchildren, and nology and know-how to make us more tives. other generations.

VerDate Aug 31 2005 00:16 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00023 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.034 S30JAPT1 ycherry on PROD1PC64 with SENATE S282 CONGRESSIONAL RECORD — SENATE January 30, 2006 Many legal experts—judges, lawyers, So if he is confirmed to the Supreme He said we should avoid allowing: professors—have contacted me regard- Court we ask ourselves the question: the exercise of the powers of one depart- ing this nomination. Some supported Will Judge Alito make it more difficult ment to encroach upon another. The spirit of him, some opposed him. Many of these for the everyday people to protect encroachment tends to consolidate the pow- experts tried to convince me one way themselves and their families against ers of all the departments in one, and thus to or the other. But when I listened to the power of big business and un- create, whatever the form of government, a Judge Alito’s hearings in the Judiciary checked Government? Do they need the real despotism. Committee, I listened with the faces of help? Is that what we are talking about Those are Washington’s words. But my grandchildren in my mind; with the when we enact laws here? I hope not. they have a real resonance today. thoughts of ordinary people who de- Unfortunately, it appears almost cer- The current administration claims a pend on the fairness of our society. I tain. power beyond the laws that Congress was applying Judge Alito’s philosophy Regarding individual rights, there has set. It is an administration that be- to the real problems of everyday peo- was a very disturbing exchange in the lieves it can spy on Americans without ple—in New Jersey and across the Na- hearing involving the Constitutional a warrant, despite specific laws to the tion. right to reproductive choice. contrary. These are the kinds of abuses I often hear many concerns from my Senator DURBIN asked Judge Alito if that caused the citizens of New Jersey constituents about how powerless they he would agree with Chief Justice Rob- and the other American colonies to rise feel in the face of insurance companies erts’ statement that the right to up against King George that are often indifferent to their choose is ‘‘settled law.’’ It seems to me We don’t want a King. And we don’t plight, or as an employee unfairly that it was a ‘‘no-brainer’’—of course it want to create a Supreme Court that treated in the workplace. What rights is settled law. It has been on the books will crown this President—or any fu- do everyday Americans have in the for 33 years and upheld 38 times. ture President—Republican or Demo- face of giant corporations or unchecked You don’t have to go to law school to cratic. Government power? At the hearing, it figure that one out. The question before us is not a ge- was clear that Judge Alito almost al- But Judge Alito refused to say it was neric question of whether Judge Alito ways lined up against the little guy ‘‘settled law.’’ To me it was a telling is qualified for the Supreme Court. The and with the big corporations and Gov- moment in the hearings. real question is whether Judge Alito is ernment. That is the side he came out I am not a lawyer, but I understand the right person for this seat on the on. In fact, the Knight-Ridder study of this: The right to choose is settled law. Supreme Court. The seat at issue is Judge Alito’s rulings showed that he That means that is the law as it is seen Sandra Day O’Connor’s seat. It is a ‘‘seldom sided with . . . an employee by Judge Roberts, Chief Justice. seat held by a middle of the road, bal- alleging discrimination or consumers Judge Alito’s refusal to acknowledge anced justice. suing big business.’’ that the right to choose is settled law As I noted during my testimony in- The Washington Post analysis of all indicates to me that, even before he troducing Judge Alito to the Judiciary divided opinions on the Third Circuit sits on the Supreme Court, he intends Committee: he is a young man. If the involving Judge Alito found that he to overturn Roe v. Wade. Senate confirms him for a lifetime ap- ‘‘has sided against three of every four That is the interpretation I make pointment to the Supreme Court, he people who claim to have been victims from that. might serve for three decades—or even of discrimination’’ and ‘‘routinely . . . For everyday New Jerseyans, espe- longer. His decisions would affect not defers to government officials and oth- cially our State’s women, that would only our rights, but also the rights of ers in a position of government author- be the realization of a nightmare. We our children, our grandchildren and ity.’’ do not want to turn back the clock on other future generations. I don’t think that is what our Found- women’s rights. Even if abortions be- That’s why, after careful consider- ers wanted when they designed the come illegal, they will still happen— ation and deliberation, I have decided Constitution. but largely in unsafe conditions. It’s a to vote no on the confirmation of I want to give two examples. In Bray nightmare that I do not want to risk Judge Alito. He is a good, decent man— v. Marriott, an African-American happening. an ethical man. I do not think he sub- motel worker in Park Ridge, NJ, al- Then there is the issue of abuse of scribes to any bigoted views. But I be- leged discrimination against her em- power and the power of the Presidency. lieve there is a grave risk that he car- ployer. The Third Circuit ruled that Growing up in New Jersey, it is clear ries a legal agenda with him, one that she deserved her day in court because that our state is proud of our role in he will bring to the Supreme Court. there was enough evidence of discrimi- the American War for Independence. I don’t think this is a black-and- nation. But Judge Alito dissented, cit- More battles of the Revolutionary War white issue. I think it is a gray issue. ing concerns about the cost of trials to were fought in New Jersey than in any If there is a gray issue, if there is doubt employers. Listen to that—citing con- other state. The most famous image of about where we are going to come out, cerns about the cost of trials to em- that war is George Washington cross- I want to decide on protecting women’s ployers. I wonder if the Constitution ing the Delaware River at Trenton. rights and protecting ordinary people makes any reference to that or does it New Jersey is a state of immigrants. in fairness before a court of law. say everybody should have equal rights Many New Jerseyans came to America While there will be law professors when it comes to hearing their case in to escape kings, despots and dictators. and others who will disagree with my the courtroom? So we understand why we fought the analysis, as I said before, I am more The other judges in that case criti- War of Independence to get rid of King concerned about the effect of this nom- cized Judge Alito’s dissent, saying that George. ination on everyday people in New Jer- if it were law, then the employment America doesn’t want a king or an sey and across the country. discrimination laws would have no real ‘‘imperial President.’’ Neither does I am proud that there is a Federal effect. New Jersey. That’s why we have three courthouse in Newark that carries my In another case, Sheridan v. Dupont, co-equal branches of government. name. It was while I was absent from Judge Alito was the only judge of 11 So when Judge Alito talked about his the Senate a while that that was done. judges who heard the case to find theory of a ‘‘unitary executive’’—a But I fought hard to get an inscription against a woman’s claim of gender dis- President above the other two branches placed on the wall of that courthouse. crimination. Judge Alito stated that of government—I found that very trou- I wrote it. It reads: the alleged victim should not even get bling. The true measure of a democracy is its dis- a trial. That is absolutely contrary to The Father of our Nation, George pensation of justice. what our country is about. This is a na- Washington, warned the American peo- This Nation of laws has to continue tion of laws. The other judges were so ple about allowing a leader to claim to be just that, and people have to distressed by Judge Alito’s decision too much power. In his farewell address know that they are treated fairly and that they said ‘‘the judicial system has to the nation, Washington indicated that their personal rights are protected little to gain by Judge Alito’s ap- his concern about the Presidency be- and that they can bring courses of ac- proach.’’ coming too powerful. tion if their rights are damaged.

VerDate Aug 31 2005 00:16 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00024 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.036 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S283 I believe in that quote. It guides me Court, and the stakes in selecting her The bias Judge Alito has shown in today. replacement are high. I have not favor of the executive branch threatens For the parents fighting an insurance agreed with every one of her decisions. to undermine the freedoms that our ju- company for access to health care for But she has shown throughout her ten- diciary has historically protected. their child, for the blue-collar worker ure a respect for law over ideology and From his work as a government lawyer facing harassment in the workplace, a commitment to deciding each case to a speech before the Federalist Soci- for women who want government’s not on the personal views she brought ety in 2000, he consistently favors the hands off their bodies, for everyday to the bench, but on the facts before concentration of unprecedented power people, I will oppose this nomination. her. When some on the court sought to in the hands of the President, even en- I yield the floor. inject an activist political philosophy dorsing the so-called ‘‘unitary execu- The PRESIDING OFFICER. The Sen- into judicial decision-making and to tive’’ theory that even many conserv- ator from New Jersey is recognized. turn back the clock on the liberties af- atives view as being at the fringe of ju- Mr. MENENDEZ. Mr. President, I forded the American people under the dicial philosophy. It virtually gives the rise, for the first time in this body, to Constitution, it was Justice O’Connor presidency exclusive powers that his- speak on the nomination of Samuel who blocked their path. torically have belonged to either Con- Alito to serve on the Supreme Court of I had hoped Judge Alito would clear- gress or the courts. This theory is an the United States. No matter one’s po- ly demonstrate that he shares the com- activist theory, not a theory that re- litical persuasion, we all take pride in mitment to protecting the individual flects mainstream American thinking the honor that has been bestowed on a rights and freedoms that Justice or values. In fact, the Supreme Court fellow New Jerseyan. O’Connor so often cast the deciding has largely rejected it. Samuel Alito’s story is one that vote to defend. Decades of progress in Judge Alito has also backed granting rings familiar to so many New protecting basic rights, including pri- absolute immunity to high-ranking Jerseyans, including myself. His par- vacy, women’s rights, and civil rights, Government officials who authorized ents came to this country in search of are at stake with this nomination. The illegal, warrantless wiretaps of Amer- opportunity, and worked hard to build burden was on Judge Alito to be forth- ican citizens, which is another position a better life for their children. The son right and unambiguous in his answers. the Supreme Court has rejected. As far of immigrants, Judge Alito’s life is a Unfortunately, his testimony was not back as the Reagan administration, he story that demonstrates the power of reassuring and his record makes clear has advocated that the President issue seizing opportunity and working hard. what kind of justice Judge Alito would signing statements in an effort to Frankly, it is a story close to my be. A justice who would vote to over- shape the meaning of legislation. own heart. I too, am the son of immi- turn a woman’s right to choose, a jus- President Bush has often used this grants who came to New Jersey to seek tice who has time and time again sided practice, most tellingly in December a better life and greater opportunity. with corporations and against average when he claimed the administration Thanks to their hard work, and my Americans, a justice who would allow could ignore the new law banning tor- own, I was the first in my family to this administration to continue to ture whenever he sees fit. This under- graduate from college and law school. stretch and potentially violate its legal mines one of the coequal branches of Yet home State pride is not a suffi- and constitutional authority. Espe- our government, the people’s elected cient reason for supporting a nominee. cially with the challenges our Nation representatives of the United States For a Supreme Court appointment is a faces today and will face tomorrow, Congress. life-time appointment. When the Su- America cannot afford that kind of jus- Judge Alito has found against con- preme Court decides, it is the law of tice. gressional authority when he argued in the land and their decisions affect the We live in extraordinary times today. dissent in United States v. Rybar lives of millions of Americans. So, it’s President Bush has sought the accumu- against a ban on machine guns that not where you come from that matters, lation of unprecedented powers. He has five other appellate courts and the but where you will take the nation. asserted the authority to not only tor- Third Circuit itself upheld. Judge Alito Sam Alito has served his entire legal ture detainees and indefinitely detain also authored the majority opinion in career in public service, and for that he American citizens as enemy combat- Chittister v. Department of Commu- is to be commended. His work as a ants, but to also conduct warrantless nity and Economic Development, in- prosecutor and as an appellate judge wiretapping of American citizens. for the past 15 years has given him sub- At different times throughout our validating parts of the Family and stantial experience. In his hearings and country’s history, Presidents under the Medical Leave Act for exceeding the his meeting with me, he demonstrated cloak of Commander-in-Chief have ex- bounds of congressional authority—a that he has a keen intellect. Judged ercised excessive authority that has position the Supreme Court subse- simply by that standard, Sam Alito is eroded individual rights and freedoms quently rejected. ready to serve. in the name of protecting the Nation. Several in-depth reviews show, Judge But competence and intellect is the Over 200 years ago, our Founding Fa- Alito’s rulings, especially his dissents, very least we should expect from some- thers purposely established our Na- consistently excuse actions taken by one seeking a lifetime appointment to tion’s government with three distinct the executive branch that infringe on the highest court in the land. Indeed, coequal branches to help prevent this the rights of average Americans. One competence alone might be enough for concentration and abuse of power. An study found that 84 percent of Judge a nominee for one of a myriad of other independent judiciary, part of our Alito’s dissents favor the government appointments. But this is about the country’s long and proud history of over individual rights. Another, the Supreme Court of the United States. checks and balances, is the only thing Alito Project at Yale Law School con- The Supreme Court, alone among our that stands between the executive ducted a comprehensive analysis of the courts, has the power to revisit and re- branch and these potential threats to Judge’s 15 years on the Federal bench. verse its previous decisions. So surely, our rule of law. They found that ‘‘Judge Alito has per- we should also demand that our jus- In 2004, the Supreme Court stood up mitted individuals to be deprived of tices fairly interpret the law, respect for the rule of law when it found that property or liberty without actual no- judicial precedent, and properly bal- the President cannot ignore the Con- tice or a prior hearing.’’ ance the rights of individuals and the stitution and confine American citi- During his hearings and in my meet- power of the state. Above all, we zens indefinitely without the ability to ing with him, Judge Alito did nothing should demand that they check their challenge their detentions. Decisions to distance himself from these posi- personal beliefs at the door. such as this, which recognize that our tions; in fact, by refusing to candidly The seat that Judge Alito hopes to Nation’s security is enhanced rather discuss where he stands on executive fill is one of great importance. Justice than undermined by respect of the rule power, he only strengthened my con- O’Connor has been the deciding vote in of law, are what has always made the cerns about his views. key cases protecting individual rights United States the envy of people If it’s not where you come from that and freedoms on a narrowly divided around the world. matters, but where you will take the

VerDate Aug 31 2005 00:16 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00025 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.038 S30JAPT1 ycherry on PROD1PC64 with SENATE S284 CONGRESSIONAL RECORD — SENATE January 30, 2006 nation, does a Supreme Court with Jus- exactly what Justice Rehnquist used in get to a trial of a jury of their peers. If tice Alito take the nation forward or his dissent in Planned Parenthood v. Judge Alito’s view was the law of the move our Nation back? Casey when arguing that Roe should be land, virtually no person of color would Back to a time when a President sus- overturned. Justice Rehnquist wrote, be able to pursue discrimination based pended the writ of habeas corpus; back ‘‘In our view, authentic principles of on race in the courts of our nation. to a time when a President ordered the stare decisis do not require that any From the bench, Judge Alito has par- internment of individuals based upon portion of the reasoning in Roe be kept ticipated in five split decisions in the their ethnicity; and back to a time intact. ‘Stare decisis is not . . . a uni- area of disability rights law and he when a President ordered the unlawful versal, inexorable command.’’’ sided with the defendant four out of breakins and wiretaps against his oppo- Because I was concerned that his ap- the five times. In Nathanson v. Medical nents. proach to these issues is far different College of Pennsylvania, relating to a Our next Supreme Court justice must than Justice O’Connor’s, I gave Judge college’s knowledge of and response to be a check and balance against broad Alito every opportunity in our meeting the disability needs of a student, the Presidential powers that are incon- to alleviate my concerns and those ex- majority held that the facts required a sistent with our Constitution. pressed by many New Jerseyans. I re- jury to hear her claims. Judge Alito With respect to reproductive rights, gret that he did not do so. disagreed with the majority, writing Judge Alito told the members of the If it’s not where you come from that that Nathanson failed to prove that the Judiciary Committee that he would matters, but where you will take the college acted unreasonably in its re- look at such cases with an ‘‘open Nation, does a Supreme Court with sponses to her requests for alternative mind.’’ However, he has, throughout Justice Alito take the nation forward seating arrangements. If Judge Alito’s his career, written that the Constitu- or move our Nation back? view was the law of the land, virtually tion does not protect a woman’s right What does Morning in America look no disabled person denied alternative to choose, worked to incrementally like after Judge Alito becomes a Su- accommodations could seek relief from limit and eventually overturn Roe v. preme Court justice? Will it be an the court. Wade, so narrowly interpreted the America where a woman’s constitu- These are only symbolic of the many ‘‘undue burden’’ standard in one spe- tional right to privacy is not acknowl- cases where Judge Alito would say no cific case as to basically outlaw this edged? Will it be an America where a to the average American citizen. right for an entire group of women, and woman does not have access to the best If someone’s daughter was seeking refused to state whether Roe is ‘‘set- medical care? Will it be an America relief from discrimination based upon tled law.’’ where women do not control their own her gender, Judge Alito would say no. When asked by Judiciary Committee bodies? If an American of color was seeking re- Chairman SPECTER whether he con- Our next Supreme Court justice must lief from discrimination based upon tinues to believe that the Constitution respect both the constitutional right to their race, Judge Alito would say no. If does not protect the right to choose, as privacy and a woman’s right to choose. someone’s handicapped son was seeking he wrote in his 1985 job application at Our Nation’s civil rights are needed relief from discrimination based upon the Department of Justice, Judge Alito to provide equal rights in employment, his disability, Judge Alito would say acknowledged that it was his view in voting, or disability, they are designed no. Judge Alito would make it vir- 1985, but refused to say whether or not to eliminate discrimination from our tually impossible for an individual to he holds that view today. I found Judge society and to provide equal oppor- go to court when his or her rights were Alito’ s refusal to answer this question tunity and access. These laws are often violated, and have their day of judg- extremely troubling. the direct result of our country’s civil ment. Later, as an Assistant Solicitor Gen- rights movement. If it’s not where you come from that eral, Judge Alito wrote a memo out- Unfortunately, Judge Alito has con- matters, but where you will take the lining a new legal strategy that the sistently applied a narrow interpreta- Nation, does a Supreme Court with Reagan administration could use to tion of civil rights laws. Over his 15- Justice Alito take the Nation forward ‘‘advance the goals of bringing about year judicial career, he has more often or move our Nation back? the eventual overruling of Roe v. Wade than not sided with corporations and Back to a time when there was not and, in the meantime, of mitigating its against individuals. equal access to schools and government effects.’’ In five split decisions involving a programs, back to a time when employ- As a judge on the Third Circuit Court claim of sex discrimination, Judge ers could fire employees without just of Appeals, Judge Alito alone con- Alito has sided with the person accused cause; and back to a time when all citi- cluded that all of the Pennsylvania re- of the sex discrimination every time. zens were not guaranteed the right to strictions, including the spousal notifi- In Sheridan v. E.I DuPont de Nemours, vote. cation provision, should be upheld as a woman brought a gender discrimina- Our next Supreme Court justice must constitutional in Planned Parenthood tion lawsuit after being denied a pro- truly subscribe to the inscription above v. Casey. Ultimately, the Supreme motion. A jury ruled in her favor, but the entrance to the United States Su- Court found 5–4 that the spousal notifi- the trial judge threw out the verdict. preme Court—‘‘Equal Justice under cation provision was unconstitutional. The full complement of the Third Cir- Law.’’ Justice O’Connor, who wrote the opin- cuit voted 10–1 to reverse the judge’s The confirmation of a Supreme Court ion, rejected Judge Alito’s arguments decision in this sex discrimination case justice is one of the two most impor- and wrote that the spousal notification and remand the case for reconsider- tant responsibilities that a Senator provision constituted an impermissible ation. Judge Alito wrote the lone dis- has, in my view. The first is a decision ‘‘undue burden’’ on reproductive rights. sent, arguing that the case should be on war and peace, which is also about She concluded by saying ‘‘Women do dismissed. If Judge Alito’s view was life and death. The other is deciding not lose their constitutionally pro- the law of the land, virtually no who will have a lifetime appointment tected liberty when they marry.’’ woman who has been wrongfully denied to the Court that decides the laws of During our meeting, when I asked a promotion based upon her gender the land. Judge Alito, ‘‘Do you believe Roe v. would have her day in court. Make no mistake about it, Judge Wade is the ‘settled law’ of the land,’’ In the area of race discrimination, Alito is a decent, accomplished, intel- he was unwilling to say that it is set- Judge Alito voted in dissent against ligent man. A man who is proud to call tled law. During the Judiciary Com- the plaintiff in both split decisions our shared State of New Jersey home. mittee hearing, he said multiple times cases. The Third Circuit held that the But it is not enough to come from New in response to questions from three of plaintiff in Bray v. Marriot Hotels had Jersey—the test is—will you represent my distinguished colleagues on the shown enough evidence of possible ra- the values of New Jersey and this Na- Committee that the principle of stare cial discrimination to merit a trial be- tion on the highest court in the land? decisis, or respect for precedent, is not fore a jury. As in Sheridan, Judge Alito In New Jersey we value creating op- an ‘‘inexorable command.’’ While this dissented, saying that the plaintiff had portunity, we cherish the idea of indi- is undoubtly the case, this language is not produced enough evidence even to vidual freedom and responsibility, and

VerDate Aug 31 2005 00:16 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00026 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.009 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S285 we believe that justice is a force that elected to make laws. The citizens of Unfortunately, there are those who should level the playing field between Missouri elected their Representatives want to use Judge Alito as a political the individual and the powerful. and Senators to represent them in Con- football. I, for one, believe very strong- I have given careful consideration to gress, the legislative body. I am hon- ly our judges and our justice system this nomination, and I entered the ored to be one of those so chosen. should be above partisan politics. Jus- process with hopes of supporting Judge Judge Alito is not. tice deserve better than to have the Alito. This is my first vote in this Sen- The citizens of Missouri are not nominees dragged through the political ate, and I had hoped to cast it in sup- electing Judge Alito to make laws. mud. port of this nominee, but after review- Judge Alito knows he will not have the My focus is on the nominee himself ing his record, and his testimony be- power to make laws. Judge Alito and on his legal knowledge and experi- fore my fellow Senators, I cannot. knows he is neither a Congressman nor ence. In that regard, Judge Alito The question for me has been will he a Senator who can pass his own legisla- should be on the Supreme Court, and I tilt the court in its ideology so far that tion from the bench. That is not the will proudly vote to place him on the he will place in jeopardy decades of role of a judge. Supreme Court. progress in protecting individual rights Judge Alito knows he is not a politi- Every case he hears, he will approach and freedoms. I am afraid that answer cian advocating a program. That is not with an open mind. Every case he con- is yes. In good conscience, I regrettably what a judge should do. He is not a pol- siders, he will apply the law and Con- cannot support his nomination for a itician responding to a stakeholder, stitution as written. Every case he de- lifetime appointment to be an Asso- carrying out the agenda of his con- cides, he will check his personal feel- ciate Justice of the Supreme Court of stituency, whether it be New Jersey or ings at the door and weigh the scales of the United States. any other State in the Nation, taking justice. I yield the floor. the pulse of voters or watching the We can expect, and should expect, The PRESIDING OFFICER (Mr. polls. That is not how to be a judge. nothing more from a Justice, and jus- COLEMAN). The Senator from Missouri. Judge Alito has told us he will look tice deserves nothing less. Mr. BOND. Mr. President, on the at the facts with an open mind and I urge my colleagues to put aside par- question of the confirmation of Judge then apply the Constitution and the tisan politics, to put aside pressure Samuel Alito, when you boil every- laws as written. He will not make up from special interests, to vote to in- thing down and clear away all of the the law when he wants, he will not voke cloture, and then to vote on a ma- other issues, the most important thing change the law when he needs. jority vote to confirm Justice Alito to each of us wants from a judge is fair- Judge Alito also knows the law, as the Supreme Court. ness and impartiality. None of us many of my colleagues on the Senate I thank the Chair and yield the floor. would want to go into a courtroom and Judiciary Committee found out. At The PRESIDING OFFICER. The Sen- think our judge had already made up every stage of his life, he has excelled ator from Texas. his mind before hearing our case. at knowing and applying the law. As a Mr. CORNYN. Mr. President, I have Whether we are rich or poor, weak or law clerk to a Federal judge, Depart- in my hand a number of endorsement strong, but especially if we are poor or ment of Justice official, Federal pros- letters that have been written, starting weak, victim or defendant, we need to ecutor, and now a Federal appellate with the Grand Lodge of the Fraternal know we will get a fair trial. judge with 15 years experience on the Order of Police. I ask unanimous con- We would not get a fair trial if we bench, Judge Alito is one of the most sent that these letters be printed in the faced a judge who had already made up qualified ever nominated for the Su- RECORD. his mind. Not only would the deck be preme Court. There being no objection, the mate- stacked against us, we would be dealt a A very good friend of mine is an ap- rial was ordered to be printed in the losing hand if we had to face a judge pellate judge, who in law school had RECORD, as follows: with an agenda different from our case. the pleasure of supervising a legal doc- GRAND LODGE, That is what justice means—impartial ument written by Judge Alito. He told FRATERNAL ORDER OF POLICE, and objective. That is the kind of judge me Judge Alito had the finest legal, ju- Washington, DC, November 18, 2005. we want hearing our case, and that is dicial mind he had ever encountered. I Hon. ARLEN SPECTER, the kind of judge Sam Alito is. trust his judgment. Chairman, Committee on the Judiciary, U.S. Everything we have learned about Judge Alito’s peers and colleagues all Senate, Washington, DC. Hon. PATRICK J. LEAHY, Judge Alito, from his testimony before agree that Judge Alito is supremely Ranking Member, Committee to the Judiciary, the Senate Judiciary Committee, his qualified for the Supreme Court. He U.S. Senate, Washington, DC. lengthy record of decided cases, to the comes highly recommended by his col- DEAR MR. CHAIRMAN AND SENATOR LEAHY: I testimonials of his colleagues and leagues and members of the legal pro- am writing on behalf of the membership of peers, tells us that Judge Alito will be fession because of his legal knowledge the Fraternal Order of Police to advise you a fair, impartial, and objective Justice. and experience. Even those who have of our strong support for the nomination of Judge Alito has told us how he be- worked with Judge Alito and disagree Samuel A. Alito, Jr. to be an Associate Jus- lieves a judge cannot prejudge an issue, with him on the issues or the outcome tice on the United States Supreme Court. Judge Alito has a long and distinguished a judge cannot have an agenda, a judge of his rulings consider him fair-minded career as a public servant, a practicing at- cannot have a preferred outcome in and evenhanded. torney, and a Federal jurist. He currently any particular case. In short, Judge Alito will make a serves as a justice on the U.S. Court of Ap- I was so glad to see that during his great Supreme Court Justice. Unfortu- peals for the Third Circuit, the very same confirmation hearing Judge Alito nately, and regrettably, the Senate’s Circuit where he began his career as a law would not allow himself to be forced vote will not reflect that. Perhaps it clerk for Judge Leonard I. Garth. Judge into prejudging any cases. Now, many was a simpler time, less partisan, less Alito spent four years as an Assistant U.S. tried. They went down their list of subject to politics, less subject to the Attorney before becoming an Assistant to issues and asked whether Judge Alito whims of shifting constituencies and the U.S. Solicitor General in 1981. During his tenure with the Solicitor’s office, he argued agreed with their agenda. They wanted pressure groups when we could over- thirteen cases before the United States Su- to know how he would rule on one kind whelmingly support those overwhelm- preme Court, winning twelve of them. In of case or another. They wanted him to ingly qualified for the Court. 1985, he served as Deputy Assistant U.S. At- decide cases before he even heard them. For example, both Justices Ginsburg torney General before returning to his native That would not be justice, and that and Scalia received unanimous or near New Jersey to serve as U.S. Attorney in 1990. would not be Judge Alito. unanimous approval. One came from Nominated by President George H.W. Bush Not only does Judge Alito know jus- the left, nominated by a Democratic to the Third Circuit, the Senate confirmed tice, Judge Alito knows democracy. President, and an advocate for the him unanimously on a voice vote. The F.O.P. believes that nominees for Democracy means that laws governing ACLU; another is a brilliant legal posts on the Federal bench must meet two the people can only be made by those mind, supported by the right. Partisan qualifications: a proven record of success as elected by the people to make laws. He politics were put aside when we voted a practicing attorney and the respect of the knows the Members of Congress are for these Supreme Court nominees. law enforcement community. Judge Sam

VerDate Aug 31 2005 02:30 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00027 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.010 S30JAPT1 ycherry on PROD1PC64 with SENATE S286 CONGRESSIONAL RECORD — SENATE January 30, 2006 Alito meets both of these important criteria. Judge Alito’s qualifications are well in the office. In his quiet and wryly humor- In his fifteen years as a Federal judge, he has known and beyond dispute. Judge Alito grad- ous way, he demonstrated wonderful leader- demonstrated respect for the Consistution, uated from Princeton University and Yale ship. It was clear that he was very conscious for the rights of all Americans, for law, and Law School. Prior to his appointment to the of the responsibilities of that office and he for law enforcement officers, who often find bench, Judge Alito had a distinguished legal fulfilled those responsibilities admirably. I it very difficult to successfully assert their career at the Department of Justice, which was very proud to work for Sam Alito. rights as employees. Judge Alito dem- culminated in his appointment as the U.S. After leaving the U.S. Attorney’s Office, I onstrated his keen understanding of this in a Attorney for the District of New Jersey. became a private practitioner. I have had the case brought by Muslim police officers in Judge Alito has served on the United States pleasure of appearing as an advocate before Newark, New Jersey (Fraternal Order of Police Court of Appeals for the Third Circuit for 15 Judge Alito in the United States Court of Newark Lodge No. 12 v. City of Newark, 1999). years and has more judicial experience than Appeals for the Third Circuit in a number of The Newark Police Department sought to any Supreme Court nominee in more than 70 cases. It is a pleasure to appear before Judge force these officers to shave their beards, years. During his time on the bench, Judge Alito due to his genial demeanor and obvious which they wore in accordance with their re- Alito has issued hundreds of opinions, and professionalism. His opinions—even when ligious beliefs. Judge Alito ruled in favor of his extraordinary intellect has contributed against my cause—were thoughtful, consid- the officers in this case, correctly noting to virtually every area of the law. erate, justifiable and well written. that the department’s policy unconstitution- As law clerks, we had the privilege of Judge Alito did not ask me to write this ally infringed on their civil rights under the working closely with Judge Alito and saw letter; I volunteered. I am a lifelong Demo- First Amendment. firsthand how he reviewed cases, prepared for crat. I am the President-elect of a national The F.O.P. is also very supportive of Judge argument, reached decisions, and drafted women’s bar association. I chair the Cor- Alito’s decision in a 1993 decision filed by a opinions. We collectively were involved in porate Integrity and White Collar Crime coal miner seeking disability benefits under thousands of cases, and it never once ap- group at a national law firm. I do not speak the Black Lung Benefits Act (Cort v. Director, peared to us that Judge Alito had pre-judged on behalf of either my law firm or the wom- Office of Workers’ Compensation Programs). a case or ruled based on political ideology. en’s bar association. I speak for myself only. Judge Alito ruled in favor of a coal miner, To the contrary, Judge Alito meticulously But by providing my credentials as an out- holding that the Benefits Review Board and diligently applied controlling legal au- spoken women’s rights advocate and liberal- which denied the miner’s claim had mis- thority to the facts of each case after full minded criminal defense attorney, I hope applied the applicable law regarding dis- and careful consideration of all relevant you will appreciate the significance of my ability. He ordered that the case be re- legal arguments. It is our uniform experience unqualified and enthusiastic recommenda- manded for an award of benefits, instructing that Judge Alito was guided by his profound tion of Sam Alito for the Supreme Court. that the Board could not consider any other respect for the Constitution and the limited Sam possesses the best qualities for judges. grounds for denying benefits. Members of the role of the judicial branch. Where the Su- He is thoughtful, brilliant, measured, seri- F.O.P. and survivor families who have been preme Court or the Third Circuit had spoken ous, and conscious of the awesome respon- forced to appeal decisions which denied bene- on an issue, he applied that precedent faith- sibilities imposed by his position. I cannot fits under workers’ compensation laws or fully and fairly. Where Congress had spoken, think of better qualities for a Supreme Court programs like the Public Safety Officer Ben- he gave the statute its commonsense read- Justice. It is my fervent hope that politics efit (PSOB) know first-hand just how impor- ing, eschewing both rigid interpretations will not prevent this extraordinarily capable tant it is to have a jurist with a working that undermined the statute’s clear purpose candidate from serving as Associate Justice knowledge of applicable law and a strong and attempts by litigants to distort the stat- on the United States Supreme Court. identification with the claimants as opposed ute’s plain language to advance policy goals I will be happy to provide any further de- to government bureaucrats looking to keep not adopted by Congress. In short, the only tails or information in any private or public costs down. result that Judge Alito ever tried to reach in forum. Judge Samuel A. Alito, Jr. has dem- a case was the result dictated by the applica- Respectfully submitted, onstrated that he will be an outstanding ad- ble law and the relevant facts. CATHY FLEMING. dition to the Supreme Court, and that he has Our admiration for Judge Alito extends far rightfully earned his place beside the finest beyond his legal acumen and commitment to JANUARY 4, 2006. legal minds in the nation. We are proud to principled judicial decision-making. As law Hon. ARLEN SPECTER, support his nomination and, on behalf of the clerks, we experienced Judge Alito’s willing- Chairman, Committee on the Judiciary, U.S. more than 321,000 members of the Fraternal ness to consider and debate all points of Senate, Washington, DC. Order of Police, I urge the Judiciary Com- view. We witnessed the way in which Judge HON. PATRICK LEAHY, mittee to expeditiously approve his nomina- Alito treated everyone he encountered— Ranking Member, Committee on the Judiciary, tion. Please do not hesitate to contact me, whether an attorney at oral argument, a U.S. Senate, Washington, DC. or Executive Director Jim Pasco, through clerk, an intern, a member of the court staff, DEAR MR. CHAIRMAN AND SENATOR LEAHY: our Washington office if we may be of any or a fellow judge—with utmost courtesy and We write in support of the nomination of further assistance. respect. We were touched by his humility Judge Samuel A. Alito, Jr. to the United Sincerely, and decency. And we saw his absolute devo- States Supreme Court. Each of us has de- CHUCK CANTERBURY, tion to his family. voted a significant portion of our legal prac- National President. In short, we urge that Judge Alito be con- tice or research to appellate matters. Al- firmed as the next Associate Justice of the though we reflect a broad range of political, NOVEMBER 9, 2005. Supreme Court. policy and legal views, we all agree that Hon. BILL FRIST, Sincerely, Judge Alito should be confirmed by the Sen- Majority Leader, U.S. Senate, Hart Senate Of- Signed by 51 former clerks. ate. Judge Alito has a well-deserved reputa- fice Building, Washington, DC. tion as an outstanding jurist. He is, in every Hon. HARRY REID, EDWARDS ANGELL sense of the term, a ‘‘judge’s judge.’’ His Minority Leader, U.S. Senate, Hart Senate Of- PALMER & DODGE LLP, opinions are fair, thoughtful and rigorous. fice Building, Washington, DC. New York, NY, November 23, 2005. Those of us who have appeared before Judge Hon. ARLEN SPECTER, Re Samuel A. Alito. Alito appreciate his preparation for argu- Chairman, Committee on the Judiciary, U.S. ment, his temperament on the bench and the Senate, Washington, DC. U.S. Senate, quality and incisiveness of the questions he Hon. PATRICK LEAHY, Committee on the Judiciary, Dirksen Senate Of- asks. Those of us who have worked with Ranking Member, Committee on the Judiciary, fice Building, Washington, DC. Judge Alito respect his legal skills, his in- U.S. Senate, Washington, DC. DEAR MEMBERS OF THE SENATE JUDICIARY DEAR MAJORITY LEADER FRIST, MINORITY COMMITTEE: I am writing to express my en- tegrity and his modesty. In short, Judge LEADER REID, CHAIRMAN SPECTER, AND RANK- thusiastic and unqualified recommendation Alito has the attributes that we believe are ING MEMBER LEAHY: We are former law that Samuel A. Alito be confirmed as an As- essential to being an outstanding Supreme clerks of Judge Samuel A. Alito, Jr. We are sociate Justice of the United States Supreme Court Justice and therefore should be con- writing to urge the United States Senate to Court. firmed. Thank you for considering our views. confirm Judge Alito as the next Associate I worked with Judge Alito in 1987. He was Sincerely, Justice of the United States Supreme Court. appointed United States Attorney for the Signed by 206 lawyers. Our party affiliations and views on policy District of New Jersey. At that time I was Mr. CORNYN. Mr. President, I also matters span the political spectrum. We the Deputy Chief and Acting Chief of the have in my other hand a series of edi- have worked for members of Congress on Special Prosecutions Unit. I continued in torials, starting with a Dallas Morning both sides of the aisle and have actively sup- that capacity for approximately eight News editorial entitled ‘‘Confirm ported and worked on behalf of Democratic, months after Sam arrived at the U.S. Attor- Republican and Independent candidates. ney’s Office. He was an exemplary U.S. At- Alito.’’ These are all editorials from What unites us is our strong support for torney. He was also an exemplary boss. He newspapers around the country recom- Judge Alito and our deep belief that he will was at all times knowledgeable, thoughtful mending that this body confirm Judge be an outstanding Supreme Court Justice. and supportive of me and the other lawyers Alito. I ask unanimous consent that

VerDate Aug 31 2005 02:30 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00028 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.018 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S287 these editorials be printed in the According to statistics compiled by the preme Court. But this is so with most, if not RECORD. Court of Appeals for the Third Judicial Cir- all, judicial nominations. Just ask Repub- There being no objection, the material was cuit, Judge Alito has dissented only 16 times licans, many of whom now have buyers’ re- ordered to be printed in the RECORD, as fol- in the last six years, fewer times than some morse over Justices David Souter and An- lows: of his colleagues. On civil-rights cases, his thony Kennedy. co-panelists agreed with Judge Alito’s votes Alito’s 1985 stance, writing as a lawyer [From the Dallas Morning News, Jan. 14, and written opinions 94 percent of the time. within the Reagan administration, that the 2006] It is possible to take issue with some of his Constitution does not support abortion CONFIRM ALITO: NOMINEE DESERVES SENATE’S views in those instances where he was in dis- rights is troubling. Unlike John Roberts dur- BACKING sent, but this isn’t the record of a judge on ing his recent chief justice confirmation After hearing Samuel Alito testify this the fringe of mainstream judicial thinking. hearings, Alito refused to state that Roe vs. week, this editorial board’s assessment is During 18 hours of hearings—almost twice Wade is settled law. He did assert that it is that the appellate judge has the intellectual as long as the interrogation of John Rob- ‘‘embedded in the culture’’ and should be re- breadth and legal depth to sit on the Su- erts—Judge Alito displayed a deep under- spected as precedent. preme Court. With few exceptions, he fielded standing of the legal issues the court is like- A stronger statement would have been Senate Judiciary Committee questions with ly to confront and kept cool under fire. He more reassuring, but in a living, breathing a ready grasp of case law and nuance. did everything possible to avoid saying how Constitution, much, in fact, will not be set- He also came across as quite reasonable. he would rule on some of the controversial tled. Were it so, then Plessy vs. Ferguson, Just as Clinton nominee Stephen Breyer issues, but that is hardly surprising. Unfor- which the Supreme Court used in 1896 to en- struck senators as a mainstream liberal, Mr. tunately, given the divisiveness in Wash- able decades of segregation under a separate Alito resides within the 40-yard lines of con- ington today too much candor can prove but equal rule, could not have been undone servatism. fatal to a nominee. by the court in 1954. We offer this conclusion—and our rec- In nominating Judge Alito, President Bush Americans should take some comfort in ommendation of him—after comparing his fulfilled a campaign promise to appoint Alito’s acknowledgment of a right to privacy testimony with several questions we raised judges who shared the views of Justices Clar- in the Constitution. His refusal to be pinned Monday. ence Thomas and Antonin Scalia. Thus, he down more concretely on this point is defen- First, his embrace of judicial precedent delivered a candidate with sound credentials sible given that the court will rule on abor- was persuasive enough to conclude he but a decidedly conservative record that tion. wouldn’t rush to overturn Roe vs. Wade. He many find troubling. Similarly, the public should take some sol- didn’t go as far as John Roberts in saying This record includes a narrow view of abor- ace from his contention that no president is the abortion rights case is settled law. But tion rights, apparent support for the expan- above the law, given the controversies he repeatedly emphasized his belief in build- sive powers of the presidency in wartime and sparked by several presidential actions in ing upon previous decisions. a narrow interpretation of the regulatory au- the war on terrorism. True, factors could lead him—or any jus- thority of Congress. Judge Alito likely will Wisconsin is fortunate to have two early tice—to reconsider a ruling, but they would help move the court rightward, and some votes on judicial nominations. Democratic be extraordinary ones. We’ll sum it up this senators, no doubt, will find this a compel- Sens. Herb Kohl and Russ Feingold are both way: Based upon his testimony, we’d feel ling reason to vote against him. Judiciary Committee members. Both acquit- very misled and deeply disappointed if he No justice should be denied a seat on the ted themselves ably in questioning the nomi- joined in an overthrow of Roe. court, however, solely on the basis of judicial nee. And both should vote the nominee out Second, he allayed fears he wholly prefers philosophy, particularly someone of Judge of committee. presidential power. He left wiggle room on Alito’s proven ability and experience. The Kohl properly probed on abortion and one- issues such as where the president can de- best way for critics—Democrats, mostly—to person, one-vote and inquired about glowing ploy troops without congressional authority. prevail when it comes to selecting federal Alito comments on Robert Bork, denied a But he didn’t live up to his billing as a jus- judges is to prevail at the ballot box. Supreme Court seat in 1987. Feingold asked tice who’d make light of checks and bal- necessary questions on executive powers, ances. Most notably, he agreed presidents [From the Milwaukee Journal Sentinel, Jan. Alito’s ruling in a case involving a mutual don’t possess unlimited power, even during 15, 2006] fund in which he invested and on the death war. SUPREME COURT; ALITO DESERVES penalty. Together, they helped ensure the Third, his objections to the ‘‘one man, one CONFIRMATION hearings were more than a GOP lovefest for vote’’ doctrine appeared mostly technical. Samuel Alito should be confirmed to the the nominee. For example, he wondered whether it meant U.S. Supreme Court. But Alito handled himself well in answer- congressional districts should have an ex- And, barring any last-minute disqualifying ing. If not as forthcoming as would be ideal, actly equal amount of voters each term. He revelations, the first step toward that goal he offered enough assurances to warrant his unveiled no willingness to undo the ruling should be yes votes in the Senate Judiciary confirmation. Democrats, however, are most that ensures fair voting weight for minori- Committee, including from Wisconsin’s two upset over what Alito didn’t say rather than ties. senators, both of whom sit on that com- what he did. This is not an entirely accept- It was unsettling that some of the nomi- mittee. able standard. nee’s views appeared different from earlier Democrats are understandably concerned We’re aware that this nomination carries a speeches or writings. A couple of times, his about specific red flags in Alito’s record but weighty significance because the nominee answers had a disturbing then-and-now qual- should nonetheless reject a filibuster. Nor will replace Justice Sandra Day O’Connor, ity. But Samuel Alito’s testimony showed he should they move, as it appeared likely late often a swing vote in a divided court. And could become a thoughtful conservative jus- last week they would, to delay the commit- Alito is still an open book on important tice. The Senate should give him that oppor- tee’s vote. Both would be antithetical to the issues. But, again, elections have con- tunity. democratic process in this specific case. sequences. Voters knew what these were, and That’s because, though we would have pre- Alito is not demonstrably beyond the pale of [From the Miami Herald, Jan. 24, 2006] ferred Alito to be more open about his judi- the U.S. mainstream. cial philosophy, he did make one case quite QUALIFIED TO SERVE ON THE SUPREME COURT Alito—and Roberts—could disappoint, of effectively. He is a conservative jurist. This course, and renege on their own claims of There is little doubt that in the coming is what the electorate, albeit narrowly, indi- open-mindedness. If they do, they will have days the Senate will confirm the nomination cated it wanted when it reelected George W. betrayed a trust to the American people. But of Judge Samuel Alito to replace Justice Bush as president in 2004. There can be no it is not at all as assured as critics have con- Sandra Day O’Connor on the U.S. Supreme reasonable claim that voters did not know tended that Alito or Roberts will do this. Court. He deserves to be confirmed. This is this to be a likely consequence of their Confirm Alito. It’s not risk-free, but it’s not an assessment of his judicial philosophy votes. the right thing to do. but of his undoubted qualifications for the Yes, Alito’s views peg him as closer to a job. He has the intellectual heft, judicial constitutional originalist than one with [From the Philadelphia Inquirer, Jan. 15, temperament and fealty to the U.S. Con- more expansive views of that document, a 2006] stitution that are prerequisites for a Su- view we prefer. But Alito is likely not the preme Court justice. In 15 years on the fed- wildeyed, knee-jerk ideologue his critics CONFIRM JUDGE ALITO eral appellate bench, he has demonstrated a have depicted. Instead, a broad view of his The Senate should confirm Judge Samuel sure grasp of issues. writings, rulings and character indicate a A. Alito Jr., President Bush’s nominee for Critics have sought to paint Judge Alito as judge capable of giving proper and due the Supreme Court. an ideologue whose views are out of the judi- weight to the law. Alito is scholarly, intel- Alito, a member of the Philadelphia-based cial mainstream. In the past, we have found ligent and eminently qualified to sit on the Third Circuit Court of Appeals, dem- this a reason to raise doubts about some of bench, as attests his rating as such by the onstrated during three days of questioning the more extreme nominations for the fed- American Bar Association. last week by the Senate Judiciary Com- eral appeals courts. However, this is not a This is not to say that there isn’t a roll-of- mittee that he does not bring a precast agen- fair argument to raise against Judge Alito. the-dice quality to this choice for the Su- da to the job.

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00029 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.046 S30JAPT1 ycherry on PROD1PC64 with SENATE S288 CONGRESSIONAL RECORD — SENATE January 30, 2006 He does bring a cast of mind that causes An analysis of Alito’s written opinions should not be continually revisited. Judge some legitimate concern. But Alito showed shows his overriding respect for authority: Alito has served on the U.S. Court of Appeals he has the experience, modest temperament, for the police, for the government, for em- for the 3rd Circuit for 15 years, and has com- reverence for the law, and mastery of his ployers. Given all the recent evidence of how piled a distinguished record that conclu- profession needed to serve on the high court. those parties commit deeds that damage in- sively demonstrates respect for precedent. A common complaint about confirmations dividuals, you’d like the high court to take The best indicator of how a justice may act has been that nominees stonewall the com- a more balanced view. on the Supreme Court is the judicial record mittee. Alito tried to answer nearly every But Alito’s cast of mind does not dis- the justice had before elevation to the court. question put to him. Democratic senators qualify him. As pragmatic Judge Edward In Judge Alito’s case, one can clearly see a may not have liked his responses, but Alito Becker of the Third Circuit testified, he and restrained approach to the law, deferring to dodged very few questions. Alito disagreed only 27 times in 1,050 cases a prior court decision even if he may have This endorsement is not enthusiastic. they heard together. Alito is not in the disagreed with its logic. Alito is a more conservative nominee than mainstream of judicial thought, but he is not While a bald statement that ‘‘the Constitu- anyone concerned with the nation’s drift to- too far to the right of it. tion does not protect a right to an abortion’’ ward excessive executive power and disdain in a vacuum might be cause for concern, for civil liberties would prefer. [From the Salt Lake Tribune, Dec. 7, 2005] Judge Alito’s statement must be taken in But the Supreme Court should not be JUDGE ALITO IS NO IDEOLOGUE context. Sen. Diane Feinstein, D-Calif., said stocked with justices all of the same polit- after her meeting with Judge Alito that he (By Jeffrey N. Wasserstein) ical persuasion, left or right. As the replace- explained that regardless of his statement on ment for a valuable centrist, Sandra Day As a former clerk for Judge Samuel Alito, the job application, ‘‘I’m now a judge, I’ve O’Connor, Alito might very well move the I can tell you he is not the conservative ideo- been on the Circuit Court for 15 years and court perceptibly to the right. But his me- logue portrayed in a recent article by Knight it’s very different. I’m not an advocate, I thodical, just-the-facts approach to the law Ridder reporters Stephen Henderson and don’t give heed to my personal views, what I does not portend a shocking shift, and would Howard Mintz (‘‘Alito Opinions Reveal Pat- do is interpret the law.’’ Sen. Ted Kennedy, not justify a filibuster of his nomination. tern of Conservatism’’). D-Mass., also noted that Judge Alito said Alito did fail to allay some important con- I am a registered Democrat who supports ‘‘he had indicated that he is an older person, cerns. On abortion, he rebuffed entreaties by progressive causes. (To my wife’s consterna- that he has learned more, that he thinks he Democrats to characterize Roe v. Wade as tion, I still can’t bring myself to take my is wiser person (and) that he’s got a better ‘‘settled law.’’ Chairman Arlen Specter (R., ‘‘Kerry for President’’ bumper sticker off of grasp and understanding about constitu- Pa.) commended Alito for discussing the my car.) I clerked for Judge Alito from 1997 tional rights and liberties.’’ issue in more depth than did Chief Justice to 1998. Notwithstanding my close work with Given Judge Alito’s respect for precedent John G. Roberts Jr., but this extended dis- Judge Alito, until I read his 1985 Reagan job and stare decisis as demonstrated by actu- course was less than encouraging. Alito, who application statement, I could not tell you ally adhering to precedent for 15 years while wrote in 1985 that the Constitution doesn’t what his politics were. When we worked on on the Court of Appeals—even in cases that guarantee the right to abortion, would not cases, we reached the same result about 95 reached results that would seem incorrect to say he feels differently today. percent of the time. When we disagreed, it a conservative—and the open mind with He pledged to ‘‘keep an open mind’’ on was largely due to the fact that he is a lot which I saw him approach cases, labeling abortion cases. But he also said Supreme smarter than I am (indeed, than most people) Judge Alito an ‘‘ideologue’’ would be unfair Court precedent is not ‘‘an inexorable com- and is far more experienced. and distorts his record on the bench. It was my experience that Judge Alito was mand.’’ If Alito does consider the Constitu- Mr. CORNYN. Mr. President, I sup- tion a living document, as he testified, he (and is) capable of setting aside any personal should weigh carefully the expressed desire biases he may have when he judges. He is the port the nomination of Sam Alito to of a majority of Americans to preserve repro- consummate professional. the U.S. Supreme Court. The American ductive freedoms. One example that I witnessed of Judge people, in public opinion polls we have On the question of presidential power, con- Alito’s ability to approach cases with an seen reported in the newspapers, indi- cerns linger that Alito would give undue def- open mind occurred in the area of criminal cate they also want Judge Alito on the erence to the executive branch. For all Presi- law, an area in which Judge Alito—a former Supreme Court. Yet we are here today, federal prosecutor—had particular expertise. dent Bush’s talk about ‘‘strict construction- after extended debate, because there ism,’’ his freewheeling notions about his One time, I was looking at a set of legal powers would have appalled many of the briefs in a criminal appeal. The attorney for are a handful of Senators who are de- Constitution’s framers, who deeply feared an the criminal defendant had submitted a slop- termined to stop Judge Alito’s nomina- authoritarian executive. py brief, a very slip-shod affair. The pros- tion from even receiving an up-or-down At the hearings, Alito sought to temper ecuting attorney had submitted a neat, pre- vote. Hence, at 4:30 we will have a vote the enthusiasm for presidential prerogative sentable brief. I suggested (in my youth and on cloture, whether to close debate. It he showed in earlier writings with the state- naivete) that this would be an easy case to is my sincere hope that at least 60 Sen- ment that the president is not above the law. decide for the government. ators will vote to close debate so to- Judge Alito stopped me cold by saying that At least he is on the record with this view morrow morning we can have that up- now. Being on the high court has been known that was an unfair attitude to have before I to focus a justice’s mind on the value of the had even read the briefs carefully and con- or-down vote that this nominee de- judiciary’s constitutional role as a check on ducted the necessary additional research serves and that the Constitution re- the other two branches. needed to ensure that the defendant received quires. A distressing point was Alito’s membership a fair hearing before the court. There really is no pretense that this in the now-defunct Concerned Alumni of Perhaps not what one would expect from a tactic of delay for delay’s sake is need- Princeton, a group created in 1972 to oppose conservative ideologue (and former federal ed for extended debate. Judge Alito was the admission of women and minorities to prosecutor), but it is indicative of the way nominated months ago, and we have Judge Alito approaches each case with an the university. His protests that he knew lit- been debating this nomination without tle about the group’s agenda, even though he open mind, and it is a lesson I’ve never for- touted his membership on a 1985 application gotten. interruption since last Wednesday. Not for a job in the Reagan administration, were Another example, which reached a result only has Judge Alito been investigated unpersuasive. that would seem contrary to a conservative by the FBI but also by the American But the example of Alito’s life must count ideologue, was a case I worked on with Judge Bar Association’s Standing Committee for something, and that example diminishes Alito (U.S. v. Kithcart) in which Judge Alito on the Federal Judiciary. He has been the significance of the Princeton misstep. He reversed a conviction of a black male, hold- investigated by the Senate Judiciary is not a bigot. He has hired and promoted ing that an all-points-bulletin for ‘‘two black Committee, on which I am proud to women and minorities. Colleagues testify to men in a black sports car’’ was insufficient his basic decency and are mystified that he probable cause to arrest the driver of the serve, and been through extended tele- joined CAP. He has renounced the group’s car. Notwithstanding the driver’s guilty vised hearings. The fact is, even the goals. plea, Judge Alito reversed, finding that the minority leader, the Democrat leader, Alito has admitted that his failure to initial arrest lacked probable cause, stating, conceded ‘‘[t]here’s been adequate time recuse himself in 2002 from a case involving ‘‘The mere fact that Kithcart is black and for people to debate’’ this nomination. Vanguard mutual funds, in which Alito had the perpetrators had been described as two So this is delay for delay’s sake. For- invested, was an ‘‘oversight.’’ It was a mis- black males is plainly insufficient.’’ tunately, there is no indication this take, even though the conflict of interest This is hardly the work of a conservative delay tactic will succeed. Judge Alito’s was not significant. Investing in a mutual ideologue. fund is not like owning stock in an indi- As a former clerk to Judge Alito, I can at- supporters in this body are so numer- vidual company. But Alito had pledged to test to Judge Alito’s deep and abiding re- ous that everyone has conceded—even bow out of cases involving Vanguard, then spect for precedent and the important role of the minority, who is determined to try didn’t. That was wrong. stare decisis—the doctrine that settled cases to filibuster this nomination, concedes

VerDate Aug 31 2005 02:30 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00030 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.016 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S289 the filibuster attempt is futile and this American Civil Liberties Union is one terror law enforcement officials can inflict nominee will be confirmed. example. They represent child pornog- on a neighborhood. So what could possibly be the moti- raphers because they believe that child If forced to choose, most Americans side vation? The Senator from Missouri, with the party that errs on the side of the pornography is free speech. Yet at the cops, not the criminals. who just spoke before me, alluded to same time, they litigate against If you listened to [Republicans], you heard this. I think it is common knowledge schoolchildren who want to recite the [Senators] alarmed by the threats posed by that it really is outside interest groups Pledge of Allegiance because it invokes anti-American terrorists. If you listened to that are putting, in some cases, irre- ‘‘one nation under God.’’ [Democrats], you heard Senators alarmed by sistible pressure on Senators to oppose They believe the Constitution pro- the threats posed by American counterter- this nomination, even though they re- tects the right to end the life of a par- rorists. alize the delay and the potential fili- tially born child. Yet at the same time, If forced to choose, most Americans want a party that will fight aggressively against the buster are futile. These are groups that they believe the Constitution does not terrorists, not the [NSA]. have declared—and I quote, in one in- protect marriage between only one He concluded: stance—‘‘you name it, we’ll do it’’ to man and one woman. defeat Judge Alito. I am very sorry They seem to believe that criminals Alito is a paragon of the old-fashioned working-class ethic. In a culture of self-ag- that some of my colleagues have fallen have more rights than victims. And grandizement, Alito is modest. In a culture under the spell of some of these groups. they believe that terrorists should re- of self-exposure, Alito is reticent. In a cul- In my view, it is wrong to place the ceive special rights never before af- ture of made-for-TV sentimentalism, Alito wishes of these interest groups before forded to enemy combatants during a refuses to emote. In a culture that celebrates the wishes of the American people. time of war. the rebel, or the fashionable pseudorebel, I think it is also a mistake to waste This is the hard left’s version of Alito respects tradition, order and authority. the valuable time of the Senate, time America. It is a place where criminals I read a lengthy excerpt from Mr. we could be using to address other real and terrorists run free on technical- Brooks’ column because I could not and urgent needs that no doubt the ities, where pornographers may speak have said it better. This is Judge President will address tomorrow night but people of faith must keep quiet, Alito’s America. It is a place where if in his State of the Union speech and where traditional values are replaced we err at all, we err on the side of the which are well known to each of us by social experimentation. law, not on the side of those who break here. We have more important things The liberal special interest groups the law, where we fight terrorists, not to do than to stage events to facilitate and those who agree with them in this those who try to stop those terrorists, fundraising by special interest groups. body to oppose Judge Alito do so be- where we work hard to get ahead, I urge all of my colleagues to stand up cause Judge Alito’s America is not the where we are more interested in get- against the interest groups and to put hard left’s America. ting the job done than getting credit the American people first by voting What, then, is Judge Alito’s Amer- for it. In other words, these are the against the filibuster. ica? Well, I found one of the best an- middle-class traditional values of I also continue to be struck by the swers to that question in, of all places, America, Sam Alito’s America, and, I lengths some will go in order to defeat the New York Times. On January 12, believe, our America. They are now ap- this good man and good judge. This one of their columnists, David Brooks, parently so foreign to many in the raises the question of ‘‘Why?’’ Why do wrote a column that captures perfectly Democratic Party, particularly the lib- liberal special interest groups and their the differences between Judge Alito’s eral interest groups that seem to agi- allies in this body oppose Judge Alito America and the America envisioned tate for delay for delay’s sake and to so vehemently? by some on the hard left. block an up-or-down vote on this nomi- I believe, at bottom, the reason they He wrote: nation, that they will stop at nothing oppose his nomination is because he If he’d been born a little earlier, Sam Alito to oppose someone such as Judge Alito has refused to do their bidding. After probably would have been a Democrat. In the who embodies those values. You name all, Judge Alito is a judge who believes 1950s, the middle-class and lower-middle- it, whether smears, distortions or even class whites in places like Trenton, N.J., in judicial restraint, who understands denying the decency of an up-or-down the differences between the roles where Alito grew up, were the heart and soul of the Democratic party. vote, and some will do it. Judge Alito’s judges and legislators—elected rep- But by the late 1960s, cultural politics re- treatment by this hard core of left- resentatives of the people—are to play placed New Deal politics, and liberal Demo- leaning groups and their supporters in our government. He believes judges crats did their best to repel Northern white says more about them than it does should respect the legislative choices ethnic voters. Big-city liberals launched cru- Judge Alito. made by the American people through sades against police brutality, portraying I yield the floor and suggest the ab- their representatives. And he believes, working class cops as thuggish storm troop- sence of a quorum. as I do, judges have no warrant to im- ers for the establishment. The liberals were doves; the ethnics were The PRESIDING OFFICER. The pose their own beliefs on the rest of us hawks. The liberals had ‘‘Question Author- clerk will call the roll. under the guise of interpreting the ity’’ bumper stickers; the ethnics had been The legislative clerk proceeded to Constitution. taught in school to respect authority. The call the roll. It is sad but true that the prospect of liberals thought that an unjust society Mr. HATCH. Mr. President, I ask a Supreme Court Justice who will re- caused poverty; the ethnics believed in work- unanimous consent that the order for spect the legislative choices of the ing their way out of poverty. the quorum call be rescinded. American people scares the living day- Sam Alito emerged from his middle-class The PRESIDING OFFICER. Without lights out of these interest groups and neighborhood about that time, made it to objection, it is so ordered. Princeton and found ‘‘very privileged people their allies. Why? Because the legisla- behaving irresponsibly.’’ Mr. HATCH. Mr. President, the Sen- tive choices of the American people are Alito wanted to learn; the richer liberals ate is about to vote on a motion to in- not the legislative choices of these in- wanted to strike. He wanted to join the voke cloture on the nomination of terest groups. ROTC; the liberal Princetonians expelled Samuel Alito to be an Associate Jus- There are some in this country who that organization from campus. He was or- tice of the U.S. Supreme Court. We are entitled to their opinion but whose derly and respectful; they were disorderly should not even have to take this step views are so extreme they will never and disrespectful. but should be voting instead on wheth- prevail at the ballot box. The only way Mr. Brooks continues: er to consent to Judge Alito’s appoint- they could possibly hope to get their If there is one lesson from the Alito hear- ment. But since we are being forced to views enacted into law would be to cir- ings, it is that the Democratic Party con- take this unnecessary step, let me ex- cumvent the Democratic process and tinues to repel [middle-class white] voters plain why I believe the case for both just as vigorously as ever. pack the courts with judicial activists If you listened to the questions of [Repub- cloture and for confirmation is compel- who will impose their views on the rest licans], you heard [Senators] exercised by ling. of us. the terror drug dealers can inflict on their Deliberation and debate are hall- What are these views? Well, one orga- neighborhoods. If you listened to the [Demo- marks of the Senate. Our tradition has nization I think makes the point. The crats], you heard [Senators] exercised by the been that once a judicial nomination

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00031 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.047 S30JAPT1 ycherry on PROD1PC64 with SENATE S290 CONGRESSIONAL RECORD — SENATE January 30, 2006 has reached the Senate floor, we debate even from this country. The Senator The first was that we should take parts and then we vote on confirmation. from Massachusetts, Mr. KERRY, called or elements of Judge Alito’s record on There is no need to revisit all of the ar- for this filibuster from Switzerland. their own terms, in their own context guments regarding judicial nomination There is a difference between not hav- for what they really are. That cer- filibusters. Suffice it to say that Amer- ing an opportunity to debate and not tainly applies to Judge Alito’s views ican history contains but a single ex- winning that debate. Nothing is being regarding the issue of precedent. ample of failing to invoke cloture on short circuited here. This floor has Rather than acknowledging what and then failing to confirm a Supreme been wide open for debate. No one can Judge Alito’s views actually are, how- Court nomination. The 1968 nomination even suggest that the debate has not ever, some of his opponents have cre- of Abe Fortas to be Chief Justice, how- been a full and fair one. ated a caricature of those views, which ever, bears no relationship to the cur- To their credit, some of my Demo- serves their political purposes but rent situation. cratic colleagues who oppose the nomi- which misleads our fellow citizens First, while the Fortas nomination nation itself have nonetheless said that about both Judge Alito’s record and did not have majority support, the this 11th-hour filibuster attempt is not this very important issue. Alito nomination clearly does. Judge in the best interest of the Senate. Let me start with Judge Alito’s own Alito enjoys majority bipartisan sup- The Senator from Illinois, Mr. words. No one expresses his view of port. I realize his opponents are not OBAMA, said over the weekend that the precedent better than he does. On Jan- happy that Judge Alito will be con- better course for Democrats is to win uary 11, 2006, Judge Alito offered this firmed; no one likes to lose. But the elections and persuade on the merits, summary of his views: correct response to failure is to pick rather than what he called overreliance I have said that stare decisis is a very im- yourself up and try another day, not to on procedural maneuvers such as the portant legal doctrine and that there is a rig the process to get your way. filibuster. I agree. general presumption that decisions of the Second, opposition to cloture on the We should not have to take this clo- Court will not be overruled. There needs to Fortas nomination was almost evenly ture vote today. It only further politi- be a special justification for doing so, but it bipartisan, with 23 Republicans and 19 cizes and distorts an already damaged is not an inexorable command. Democrats. As we are about to see, op- judicial confirmation process. Moving This view has several elements. position to cloture on the Alito nomi- beyond that, it is clear that the case First, Judge Alito says plainly that nation will be entirely partisan. The for Judge Alito’s confirmation is com- stare decisis is a very important legal most important reason why the Fortas pelling. Last week I outlined three rea- concept and doctrine. He described why cloture vote is no precedent for this sons why Judge Alito should be con- he thinks precedent is so important. one is that there had not yet been full firmed. He is highly qualified. He is a One of his points stood out, and I be- and complete debate on the Fortas man of character and integrity, and he lieve it is worth highlighting. Let me nomination when the vote ending de- understands and is committed to the just refer to that point. He said: bate occurred. Senator Robert Griffin properly limited role of the judiciary, I think the doctrine of stare decisis is a of Michigan stated clearly at the time judges. very important doctrine . . . [I]t limits the that not all Senators had had a chance During the debate on this nomina- power of the judiciary . . . it’s not an inex- to speak and that the debate was being tion, other Senators have explored orable command, but it is a general presump- kept squarely on the many serious these matters as well, including the tion that courts are going to follow prior precedent. issues and concerns raised by the Senator from Texas, Mr. CORNYN, who Fortas nomination. Senators were de- preceded me here today. Senator Precedent is an important element of bating, not obstructing, the nomina- CORNYN is a distinguished member of judicial restraint. In contrast to the tion. the Judiciary Committee and a former grandiose picture painted by some on The same cannot be said today. State supreme court justice. His per- the other side of the aisle, the judici- Those raising this last-minute call for spective and insight on judicial mat- ary doesn’t exist to right all wrongs, a filibuster have had a full and fair op- ters has been and is extremely valu- correct all errors, heal social wounds, portunity to air their views about this able. and otherwise usher in an age of do- nomination. Let us not forget that de- I wish to explore one specific issue mestic tranquility. Judges have a spe- bate over a nomination, especially to that relates to Judge Alito’s judicial cific role to play, but, like legislators the Supreme Court, begins as soon as philosophy which, unfortunately, has and the executive, they must stay in the President announces his intention been the subject of a disinformation their proper place. to nominate. The Judiciary Committee campaign by Judge Alito’s opponents. Judge Alito believes that giving chairman, Senator SPECTER, accommo- That issue is Judge Alito’s view on the precedent an important role in decid- dated Democrats and waited to hold role of precedent or prior judicial deci- ing cases limits the power of the judici- the hearing on the Alito nomination sions in deciding cases. Judges settle ary. If his opponents believe instead until January. In fact, the 70 days be- legal disputes by applying the law to that judges should have unlimited tween announcement and hearing ex- the facts in the cases that come before power and may disregard precedent at ceeded the average time for all of the them. The law that judges apply to set- will, let them try to persuade the current Supreme Court Justices by tle legal disputes comes in two basic American people. more than 60 percent. Nonetheless, forms. Let me refer again to Judge Alito’s committee Democrats insisted on de- There is the written law itself in the summary of his views on precedent. In laying the nomination for an extra form of constitutional provisions, stat- addition to stare decisis being an im- week. utes, or regulations. Then there are portant legal doctrine, Judge Alito also The nomination has now been on the past decisions in which the courts have said that there is a general presump- floor for nearly a week. While the Sen- addressed the same issue. The Latin tion that decisions of the Court will ator from Massachusetts, Mr. KEN- phrase for following precedent or prior not be overruled. If that presumption NEDY, says that Senators need still decisions is ‘‘stare decisis,’’ which did not exist, there would be little more time to debate, I recall the long, means ‘‘let the decision stand.’’ Mr. point in paying attention to prior deci- repeated quorum calls last week when President, every judge believes in the sions at all. In fact, it is that presump- Senators who could have spoken chose doctrine of stare decisis. Every judge tion which makes precedent useful in not to do so. I agree with the distin- believes that prior decisions play an limiting the power of the judiciary. guished minority leader who last important role in judicial decision- Judge Alito also said that overruling Thursday said that ‘‘there has been making. That includes Judge Alito. a prior decision requires a special jus- adequate time for people to debate. No As I will explain, Judge Alito’s views tification. Some of Judge Alito’s oppo- one can complain in this matter that on precedent are sound, traditional, nents suggest that he has taken a care- there hasn’t been sufficient time to and principled. When the Judiciary less or reckless attitude toward the talk about Judge Alito, pro or con.’’ Committee hearing on this nomination precedents of the court on which he In fact, the last-ditch call for this fil- opened, I outlined several rules which now sits. I assume that, by this sugges- ibuster came not from this floor or should guide the confirmation process. tion, they want people to believe that

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00032 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.049 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S291 Judge Alito would play fast and loose The real issue for Judge Alito’s oppo- short order. When the Supreme Court with Supreme Court precedent once he nents is not that he rules too often for interprets the Constitution incor- joins the Court. The suggestion is cer- this group or that group, as if judges rectly, correction comes only through tainly false. are supposed to make the numbers sat- the cumbersome constitutional amend- Judge Alito has voted to overrule his isfy some political interest group rath- ment process or the Court’s willingness own court’s precedents only four times er than faithfully apply the law. It is to review its past decisions. in the 15 years on the U.S. Court of Ap- not really about theories such as what I ask unanimous consent that a list peals—only four times. In each of those has been called the unitary executive, of Supreme Court decisions affirming cases, in which all of the judges in the which to Judge Alito apparently means the principle that precedent is weakest circuit participated, he was in the ma- nothing more unusual than that the in constitutional cases be printed in jority, and in two of them the decision head of the executive branch should be the RECORD. was unanimous. Judge Alito has dem- able to control and lead the executive There being no objection, the material was onstrated his view that judges should branch. It is not about guilt-by-asso- ordered t9 be printed in the RECORD, as fol- lows: not heedlessly overrule past decisions. ciation tactics—accusations of affili- As he explained it, the factors help- ation with groups wanting to preserve STARE DECISIS IS WEAKEST IN CONSTITUTIONAL CASES ing judges to handle precedents, includ- Princeton’s all-male tradition made by ing ones to overrule or reaffirm them, Agostini v. Felton, 521 U.S. 203,235 (1997) Senators belonging to all-male clubs. (quoting Payne v. Tennessee, 501 U.S. 808,828 include when a past decision has actu- No, Mr. President, this is about abor- ally been challenged and the Court has (1991))—Justice O’Connor. tion. That is the be-all and end-all ‘‘As we have often noted, ‘[s]tare decisis is decided to retain it. This would, of issue of those who oppose Judge Alito. not an inexorable command, . . .’ That pol- course, not include cases in which the I admit there may be an exception or icy is at its weakest when we interpret the validity of a prior decision was neither two over there, but I really believe it Constitution because our interpretation can challenged nor decided. It is, after all, comes down to that. That is what is be altered only by constitutional amendment another fundamental principle of judi- driving this, and that is what the out- or by overruling our prior decisions.’’ cial restraint, which Judge Alito also Payne v. Tennessee, 501 U.S. 808,828 (1991) side special interests, the leftwing (quoting Helvering v. Hallock, 309 U.S. 196,119 endorsed, that courts should not decide groups, are using to drive them. The constitutional questions unless abso- (1940) and Burnet v. Coronado Oil & Gas Co., 800-pound precedent in the room is Roe 285 U.S. 393,407 (1932))—Chief Justice lutely necessary. That would include v. Wade. That is the decision Judge Rehnquist. deciding whether prior decisions, espe- Alito’s opponents want left alone at all ‘‘Stare decisis is not an inexorable com- cially on constitutional issues, should costs. mand; rather, it ‘is a principle of policy and be overruled or reaffirmed. Many Senators and leftwing interest not a mechanical formula of adherence to Obviously, a court does not decide an the latest decision.’ This is particularly true groups have demanded to know wheth- issue unless it actually addresses and in constitutional cases, because in such cases er Judge Alito, if confirmed, would decides it, and a court cannot be said ‘correction through legislative action is ever vote to overrule Roe v. Wade. I ap- to reaffirm or uphold a prior decision practically impossible.’’’ plaud their creativity in getting as Harmelin v. Michigan, 501 U.S. 957,965 unless it actually addresses or decides close as possible to directly asking him (1991)—Justice Scalia. that issue. ‘‘We have long recognized, of course, that That said, a court strengthens the that question. For most of Judge Alito’s opponents, whether Roe v. Wade the doctrine of stare decisis is less rigid in presumption that a precedent will be its application to constitutional prece- followed when the court actually does was correctly decided doesn’t matter. dents.’’ reaffirm such a decision. At the same Whether it was a legitimate interpreta- Glidden Co. v. Zdanok, 370 U.S. 530,543 time, Judge Alito has said that adher- tion of the Constitution does not mat- (1962)—Justice Harlan. ter. No, abortion advocates take a flu- ‘‘. . . this Court’s considered practice not ing to prior decisions is not an inex- to apply stare decisis as rigidly in constitu- orable command. Those are not his idly flexible approach to precedent, at least until they get the one they want. tional as in nonconstitutional cases. . . .’’ words. As he pointed out at his hear- New York v. United States, 326 U.S. 572 ing, the Supreme Court has repeatedly Then they become the most rigid and (1946)—Justice Frankfurter. used that language, holding over and doctrinaire defenders of precedent, in- ‘‘But throughout the history of the Court over again that adherence to precedent sisting on keeping what they have. stare decisis has had only a limited applica- is not an inexorable command. This all seems like a judicial version of tion in the field of constitutional law. And it This only makes sense. While fol- ‘‘heads I win, tails you lose.’’ is a wise policy which largely restricts it to lowing prior decisions is a presump- Mr. President, I am glad to say that those areas of the law where correction can be had by legislation. Otherwise the Con- tion, it is a rebuttable presumption. Judge Alito follows principle rather than politics on the bench. Can you stitution loses the flexibility necessary if it Here is where Judge Alito’s opponents is to serve the needs of successive genera- cry foul the loudest and where they ex- imagine if the attitude of his oppo- tions.’’ pose their real agenda. nents regarding this one precedent, Smith v. Allwright, 321 U.S. 649,665 (1944)— Many of Judge Alito’s opponents do Roe v. Wade, actually prevailed across Justice Reed. not really care about legal doctrines; the board? What if adherence to prior ‘‘In constitutional questions, where correc- they only care about political agendas. decisions was actually an inexorable tion depends upon amendment and not upon For them, the political ends justify the command? What if the Supreme legislative action, this Court throughout its Court’s interpretation of the Constitu- history has freely exercised its power to re- judicial means, and so-called principles examine the basis of its constitutional deci- are infinitely flexible so long as the po- tion, once on the books, could never be sions.’’ litical goal is achieved. They do not changed? If the doctrine of stare decisis St. Joseph Stock Yards Co. v. United States, care about precedents in general; they were an inexorable command, decisions 98 U.S. 38,94 (1936)—Justices Stone and only care about certain precedents in such as Dred Scott v. Sanford and Cardozo, concurring in the result. particular. Plessy v. Ferguson would still be on ‘‘The doctrine of stare decisis . . . has only While Judge Alito has presented a the books. a limited application in the field of constitu- tional law.’’ thoughtful, principled approach to han- Judge Alito put it: Burnet v. Coronado Oil & Gas Co., 285 U.S. dling any prior decision, his opponents I don’t think anybody would want a rule in 393,407 (1932)—Justice Brandeis, dissenting. have but one simple, hard, political the area of constitutional law that . . . said ‘‘[I]n cases involving the Federal Constitu- rule: get your hands off the precedents that a constitutional decision once handed tion, where correction through legislative we want to keep. Their rule seems to down can never be overruled. action is practically impossible, this court be stare decisis for me but not for thee. The judiciary must be guided by prin- has often overruled its earlier decisions.’’ Reaffirm decisions we like; overrule ciples, not by politics. The Supreme Mr. HATCH. Mr. President, in some ones we oppose. This one-way ratchet Court has repeatedly said that the role of these cases, the Justice whom Judge is simply a device for getting the of precedent is actually the weakest in Alito would replace, Justice Sandra courts to do the political heavy lifting cases involving the Constitution for a Day O’Connor, is the one repeating this and preserving particularly the Su- very simple reason. When the Supreme principle. preme Court’s role as policymaker in Court construes one of our statutes in- Let me return once again to how chief. correctly, we can correct that error in Judge Alito summarized his own view

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00033 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.057 S30JAPT1 ycherry on PROD1PC64 with SENATE S292 CONGRESSIONAL RECORD — SENATE January 30, 2006 of precedent. It is a very important rise to concerns that he will prove too toler- matter beyond judicial review. (Good judges, legal doctrine that serves to limit judi- ant of claims of executive power in the war he pointedly said, ‘‘are always open to the cial power. There is a general presump- on terror. He has tended at times to read possibility of changing their minds based on tion that past decisions will not be civil rights statutes and precedents too nar- the next brief that they read or the next ar- rowly. He has shown excessive tolerance for gument that’s made by an attorney who’s ap- overruled, but this is not an inexorable aggressive police and prosecutorial tactics. pearing before them or a comment that is command. There is reason to worry that he would cur- made by a colleague ... when the judges pri- Judge Alito takes a sound, tradi- tail abortion rights. And his approach to the vately discuss the case.’’) tional, principled view of the role of balance of power between the federal govern- That Alito finds repugnant the views of a precedent in judicial decisionmaking, ment and the states, while murky, seems un- long departed, long forgotten Princeton or- and I hope my colleagues will consider promising. Judge Alito’s record is com- ganization to which he, apparently, had the Judge Alito’s view for what it actually plicated, and one can therefore argue against slimmest of connections. is. imputing to him any of these tendencies. Yet That he believes judges should rule on the law, not make law. In closing, let me say that the debate he is undeniably a conservative whose pres- ence on the Supreme Court is likely to If Democrats on the Judiciary Committee over this nomination has been going on produce more conservative results than we hoped to expose him as a right-wing ideo- for about 3 months. It has been long would like to see. logue, they failed. They did manage, as they and vigorous, both inside the Senate Which is, of course, just what President did last year in the confirmation hearings and across the country. I wish to note Bush promised concerning his judicial ap- for Chief Justice John G. Roberts Jr., to some of the opinions outside of this pointments. A Supreme Court nomination show how pious, preening and pompous they body on the nomination before us. isn’t a forum to refight a presidential elec- can be. Some of my colleagues on other side tion. The president’s choice is due def- Alito probably won’t get many Democratic of the aisle are fond of quoting liberal erence—the same deference that Democratic votes, even though he deserves their support. senators would expect a Republican Senate We’ll go through the ritual of opposition sen- law professor Cass Sunstein’s statis- to accord the well-qualified nominee of a ators declaring that, after careful delibera- tical analysis about which sides have Democratic president. tion, they cannot vote for this nominee. won or lost in different categories of And Judge Alito is superbly qualified. His They’ve already laid the foundation, as the cases before Judge Alito. They have record on the bench is that of a thoughtful lawyers say; several Democrats have an- often said it is in his dissent that we conservative, not a raging ideologue. He pays nounced that after more than 18 hours of tes- may find his true judicial philosophy. I careful attention to the record and doesn’t timony they still have doubts about his wonder whether they will credit Pro- reach for the political outcomes he desires. ‘‘credibility.’’ A week of hearings. Fifteen years of judi- fessor Sunstein’s conclusions about His colleagues of all stripes speak highly of him. His integrity, notwithstanding efforts cial opinions, all available for review. But in Judge Alito’s dissents, published last to smear him, remains unimpeached. all that, Alito’s opponents have failed to un- November in the Washington Post. Humility is called for when predicting how earth anything damaging—or even to elicit Here is what he said on the contrary: a Supreme Court nominee will vote on key an intemperate remark from the judge, None of Alito’s opinions is reckless or irre- issues, or even what those issues will be, though they did succeed in making his wife sponsible or even especially far-reaching. His given how people and issues evolve. But it’s cry. It’s a wonder anyone is willing to endure disagreement is unfailingly respectful. His fair to guess that Judge Alito will favor a ju- this process. dissents are lawyerly rather than bombastic. diciary that exercises restraint and does not The special-interest campaigns will thun- He does not berate his colleagues . . . Nor substitute its judgment for that of the polit- der on for a few more days. Some Democrats has Alito proclaimed an ambitious or con- ical branches in areas of their competence. on the committee have demanded the vote be troversial theory of interpretation. He That’s not all bad. The Supreme Court sports postponed while they ponder their next avoids abstractions. a great range of ideological diversity but less moves, including a possible filibuster. What That was November 1, 2005. disagreement about the scope of proper judi- a terribly destructive move that would be. Here is the conclusion of New York cial power. The institutional self-discipline Alito’s integrity, professional competence and judicial temperament ‘‘are of the highest Newsday, which is titled ‘‘Qualifica- and modesty that both Judge Alito and Chief Justice Roberts profess could do the court standing.’’ That was the judgment of the tions’’: good if taken seriously and applied apoliti- American Bar Association, reached after Samuel Alito is a modest, decent man and cally. interviewing 300 people who know Alito and an accomplished jurist, well within the coun- Supreme Court confirmations have never evaluating 350 of his written opinions and try’s conservative mainstream. On that basis been free of politics, but neither has their dozens of unpublished opinions, oral argu- he should be confirmed. But the Nation will history generally been one of party-line ments and memos. need him to be a strong guardian of the con- votes or of ideology as the determinative He ‘‘sees majesty in the law, respects it, stitutional rights and protections that make factor. To go down that road is to believe and remains a dedicated student of it to this this country special. that there exists a Democratic law and a Re- day.’’ That, too, was the judgment of the I ask unanimous consent that three publican law—which is repugnant to the ABA. other editorials from the Washington ideal of the rule of law. However one reason- Alito is, as his colleague, federal Appellate Post, Chicago Tribune, and the Newark ably defines the ‘‘mainstream’’ of contem- Judge Edward R. Becker, testified, ‘‘a real porary jurisprudence, Judge Alito’s work lies judge deciding each case on the facts and the Star-Ledger be printed in the RECORD. within it. While we harbor some anxiety law, not on his personal views, whatever There being no objection, the mate- about the direction he may push the court, they may be.’’ rial was ordered, to be printed in the we would be more alarmed at the long-term He deserves every senator’s vote. RECORD, as follows: implications of denying him a seat. No presi- [From the Washington Post, Jan. 15, 2006] dent should be denied the prerogative of put- [From the Newark Star-Ledger, Jan. 17, 2006] CONFIRM SAMUEL ALITO ting a person as qualified as Judge Alito on CONFIRM ALITO TO THE COURT The Senate’s decision concerning the con- the Supreme Court. The Senate Judiciary Committee hearings firmation of Samuel A. Alito Jr. is harder on Supreme Court nominee Samuel Alito Jr. [From the Chicago Tribune, Jan. 15, 2006] than the case last year of now—Chief Justice have been a remarkable tutorial—not in the John G. Roberts Jr. Judge Alito’s record CONFIRM JUDGE ALITO law but in just how low partisan politics raises concerns across a range of areas. His Having survived the hazing ritual known have sunk. replacement of Justice Sandra Day O’Connor as a Senate Judiciary Committee confirma- Democrats have painted Alito as someone could alter—for the worse, from our point of tion hearing, Judge Samuel Alito Jr. has ready to turn back the clock 50 years on view—the Supreme Court’s delicate balance demonstrated that he should be confirmed civil, reproductive and workers’ rights. They in important areas of constitutional law. He for the Supreme Court. have attempted to draw a public portrait of would not have been our pick for the high He had largely done so before the hearing. Alito, sometimes relying on half-truths, that court. Yet Judge Alito should be confirmed, His record on the bench is strong. The Amer- those who know him best barely recognize. both because of his positive qualities as an ican Bar Association determined he is highly Republicans responded to this onslaught appellate judge and because of the dangerous qualified. But he had to go through the proc- with a slew of softball questions designed not precedent his rejection would set. ess of proving that he could remain calm to elicit information but to present the Though some attacks on him by Demo- through every contorted attempt by senators nominee in the best possible light. cratic senators and liberal interest groups to challenge his character and fitness. He Neither side has served the public particu- have misrepresented his jurisprudence, has done so. larly well. Judge Alito’s record is troubling in areas. So what did we learn from the hearing? For their part, Senate Judiciary Com- His generally laudable tendency to defer to That Alito will not prejudge matters be- mittee members interjected a level of sen- elected representatives at the state and fed- fore the court, despite the Democrats’ fer- atorial logorrhea that was stunning, droning eral levels sometimes goes too far—giving vent demand that he declare abortion is a on and on about matters that had nothing to

VerDate Aug 31 2005 02:30 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00034 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.059 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S293 do with Alito’s fitness to serve on the na- States, Democrats and Republicans, Wayne Stenehjem, Attorney General of tion’s highest court. have signed a letter urging this body to North Dakota; Henry McMaster, Attor- Despite the spectacle of the hearings, we confirm Judge Alito. I am proud that ney General of South Carolina; Law- are convinced Alito, a New Jerseyan who sits Mark Shurtleff, attorney general of my rence Long, Attorney General of South on the 3rd U.S. Circuit Court of Appeals, is Dakota; Judith Williams Jagdmann, eminently qualified to serve as an associate home State of Utah, is among them. Attorney General of Virginia; Michael justice of the U.S. Supreme Court and should They write: A. Cox, Attorney General of Michigan; be confirmed by the committee and ulti- Judge Alito represents the best of the Fed- George Chanos, Attorney General of mately by the full Senate, and, yes, with the eral bench and we believe he will be an excel- Nevada; Jim Petro, Attorney General support of New Jersey’s two Democratic sen- lent Supreme Court justice. of Ohio; Greg Abbott, Attorney General ators. of Texas; Mark Shurtleff, Attorney Our support is not an uncritical ode to I agree, and I ask unanimous consent that this letter be printed into the General of Utah; Rob McKenna, Attor- homegrown talent. It is based, in part, on the ney General of Washington. respect and praise Alito has garnered from RECORD. those who have worked with him throughout There being no objection, the mate- Mr. HATCH. Mr. President, the votes his distinguished legal and judicial career. rial was ordered to be printed in the we take today and tomorrow give us an Democrats and Republicans, conservatives RECORD, as follows: important opportunity. The Los Ange- and liberals, many of whom, perhaps, philo- JANUARY 6, 2006. les Times editorial of January 15, 2006, sophically disagree with Alito, have consist- Re Judicial confirmation of Judge Samuel A. got it right, saying that trying to de- ently maintained he is well-suited for the Alito, Jr., to the Supreme Court of the rail this nomination by filibuster rath- court. United States. er than on the merits is wrong. We think they make a compelling case. Among those who speak highly of him are Hon. BILL FRIST, I urge my colleagues to preserve this Rutgers Law School Associate Dean Ronald Majority Leader, U.S. Senate, body’s tradition by rejecting this des- Chen, an outspoken liberal who was just Washington, DC. perate filibuster attempt, and then in a named by Gov.-elect Jon Corzine to be public Hon. ARLEN SPECTER, vote tomorrow, I urge my colleagues to advocate; retired Chief Judge John Gibbons Chairman, Committee on the Judiciary, honor the judiciary’s important but U.S. Senate, Washington, DC. of the 3rd Circuit Court of Appeals, who limited role in our system of govern- since leaving the bench has worked aggres- Hon. HARRY REID, Minority Leader, U.S. Senate, ment by confirming this qualified and sively to eliminate the death penalty; well- honorable man to the Supreme Court known Democratic lawyer Douglas Eakeley, Washington, DC. who was appointed by President Bill Clinton Hon. PATRICK LEAHY, of the United States of America. to the board of directors of the Legal Serv- Ranking Member, Committee on the Judiciary, Mr. President, I yield the floor. ices Corp.; Democratic criminal defense at- U.S. Senate, Washington, DC. The PRESIDING OFFICER. The Sen- torney Joseph Hayden and former Attorney DEAR MAJORITY LEADER FRIST, MINORITY ator from Mississippi. General Robert Del Tufo, who served in Dem- LEADER REID, CHAIRMAN SPECTER, AND RANK- Mr. COCHRAN. Mr. President, it is ocrat Jim Florio’s cabinet and worked with ING MEMBER LEAHY: We, the undersigned At- time for the debate on the nomination Alito in the U.S. Attorney’s Office. torneys General of our respective states, are writing in support of the confirmation of of Judge Alito to end. It is time for the None of these folks had to stand up for Senate to act on the President’s nomi- Alito, but they did. Judge Samuel A. Alito, Jr., to serve as an Similarly, the judges who sit with Alito on Associate Justice on the Supreme Court of nation of Samuel Alito to serve as a the 3rd Circuit in Philadelphia came forth in the United States. Justice on the U.S. Supreme Court. an unprecedented show of support, insisting We are confident that Judge Alito will We have had ample time to review he was not an ideologue, had scrupulously bring to the Court not only years of legal ex- this nomination. The Judiciary Com- adhered to precedent and had shown no signs perience and judicial temperament, but also mittee has conducted a thorough re- of hostility toward a particular class of cases modesty and great personal character. view of Judge Alito’s background and or litigants. We reflect diverse views and constituencies The American Bar Association declared and are united in our belief that Judge Alito qualifications. Senator SPECTER, as Alito ‘‘well-qualified’’—the highest approval will be an outstanding Supreme Court Jus- chairman of the Judiciary Committee, rating given by the ABA. tice and should be confirmed by the United ensured that all the questions that This is not to say we like everything we States Senate. should be asked of this nominee were heard from Alito in the hearings. As the Senate prepares for the confirma- asked and answered. Given our strong and long-standing sup- tion process of Judge Alito, it is important The Judiciary Committee thoroughly port for abortion rights, we worry that to look beyond partisan politics and ideology reviewed the story of Judge Alito’s life Alito’s refusal to describe Roe vs. Wade as and focus on the judicial experience of this and questioned him on a wide range of settled law could mean he’ll be inclined to extremely well qualified nominee. Judge take positions that chip away at a woman’s Alito has served the United States as an As- issues. In the process, Judge Alito dem- right to abortion. At a time when questions sistant to the Solicitor General, as a United onstrated his ability, intelligence, and are being raised about the abuse of presi- States Attorney, and for the past 15 years, as his fitness to serve as a Justice on the dential power in the war on terror, we’re a Judge on the Third Circuit Court of Ap- U.S. Supreme Court. discomforted by Alito’s expansive view of peals. In almost 3 months of intense scru- presidential authority. Judge Alito’s record on the Third Circuit tiny and over 18 hours of personal tes- The hard truth is that selecting nominees Court of Appeals demonstrates judicial re- timony before the Senate Judiciary for the Supreme Court is a presidential straint. He has proven that he seeks to apply Committee, Judge Alito provided clear choice. And it is reasonable and appropriate the law and does not legislate from the for a president to pick someone who reflects bench. Judge Alito’s judgments while on the and candid answers to all the questions his values. During the 2004 presidential race, bench have relied on legal precedent and cur- that were asked. candidate George Bush made no bones about rent law, and he has a long-standing reputa- All Senators have had an opportunity his intention, if given a chance, to select tion for being both tough and fair. In short, to meet with Judge Alito, to review the conservatives. Judge Alito represents the best of the federal opinions he has written, to read the ar- Some Democrats have argued against that bench and we believe he will be an excellent ticles he has written in law reviews and standard. They’ve said nominees have to re- Supreme Court Justice. other publications, to become famil- flect a political ‘‘mainstream.’’ But if that We urge the Senate to hold an up or down were the case, Clinton’s nomination of Ruth iar—as familiar as anyone can—with vote and confirm Judge Alito. his thinking, his judicial philosophy, Bader Ginsberg would never have been con- Sincerely, firmed by a 96–3 vote. Republicans over- John W. Suthers, Attorney General of his past performance as a judge, as a whelmingly supported Ginsberg, even though Colorado; Troy King, Attorney General solicitor, as a lawyer in private prac- she is the very picture of a left-wing ideo- of Alabama; Charlie Crist, Attorney tice, as a student in law school, and as logue. She was general counsel of the Amer- General of Florida; Lawrence Wasden, a fellow judge. Judge Alito has more ican Civil Liberties Union and directed the Attorney General of Idaho; Tom judicial experience than any Supreme ACLU’s Women’s Rights Project, arguing nu- Corbett, Attorney General of Pennsyl- Court nominee in over 70 years. merous controversial abortion rights cases. vania; David W. Ma´ rquez, Attorney Alito is a conservative, but he is not an In my opinion, the most impressive General of Alaska; Mark J. Bennett, and persuasive testimony at the hear- ideologue. He has demonstrated that he has Attorney General of Hawaii; Stephen the intellect and temperament to serve the Carter, Attorney General of Indiana; ings in the committee came from the nation well. Phill Kline, Attorney General of Kan- panel of judges with whom he served on Mr. HATCH. Mr. President, I also sas; Jon Bruning, Attorney General of the Third Circuit Court of Appeals. note that the attorneys general of 20 Nebraska. They testified before the committee

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I think he is going to contribute about the decision that should be to me to see that he did not have a greatly in this particular category. reached in each case, and generally the note in front of him the whole time, The area of abortion got the most re- way he went about discharging the and if you asked him any constitu- view, and it is unknown how he would enormously important duties he had as tional question on any case at any rule in the case of Roe v. Wade or any- a member of that court. And despite time in the history of the Republic, he thing along that line. He did not state differences in politics and viewpoints would say here are the facts of that an opinion one way or the other. It is and backgrounds among some of the case, here is how the law was decided, an area of open case law. It is an area, judges with him, they were all enthu- this case is still in question or it isn’t. in my opinion, that is not in the Con- siastically supporting his confirmation He is a brilliant jurist. He wasn’t par- stitution. There is no constitutional for service on the Supreme Court. ticularly good on international law, right for a woman to abort her child. I Judge Alito has earned the respect of and I was particularly glad to hear he believe it to be a matter that should be those who know him best—his col- wasn’t good on law, on what would hap- decided by bodies such as this, or in leagues on the Federal courts, as well pen in other countries. States around the country. as his current and former law clerks, He has a long history on the bench I remind my colleagues, as they all and the members of the bar who have which I think is important. For a se- know, if Roe v. Wade or any portion of appeared before him in court. He is ries of years now, only so-called stealth it were overturned, the issue goes back widely respected for his even tempera- candidates could be approved. Judge to the States. That is the group, that is ment, his integrity, his sound legal Alito is a man with years of experience the body that resolves this issue. It is judgment, and his respect and courtesy on the Third Circuit Court of Appeals. not something where the ruling auto- for others. He has written a number of opinions matically shuts everything down. What I am confident Judge Alito will serve that we could dissect them and see. happens is it goes back and California with great distinction as a Justice on People were looking into his back- decides its rules and New York, Flor- the Supreme Court. I think reciting ground, trying to determine does he ida, Kansas, Minnesota, and other Judge Alito’s own words is the best lean this way or that way, but he has States decide theirs. way for me to conclude my remarks. hundreds of published opinions, and I don’t see what is so untrustworthy He said: through them we can see which way he about States resolving this issue. They Fifteen years ago, when I was sworn in as leans. did prior to 1973, and we didn’t have a judge of the Court of Appeals, I took an He is a known commodity—well near the level of conflict or difficulty oath. I put my hand on the Bible, and I swore in this country on those laws when the that I would administer justice without re- known, well respected, and well re- spect to persons, that I would do equal right garded across the board. I do think States were resolving these issues. to the poor and the rich, and that I would where he is going to contribute to the I strongly doubt all the States would carry out my duties under the Constitution country, the Republic, is in the areas resolve them the same. I doubt a State and the laws of the United States. And that of religious freedom and free expres- in a certain part of the country would is what I have tried to do to the very best of sion. This has not gotten much play at be identical to another one. Yet I do my ability for the past 15 years. And if I am all in the media or in much of the hear- think it would reflect the will of the confirmed, I pledge to you that that is what ings, but it is one of the areas he has people. But we do not know how Judge I would do on the Supreme Court. written the most extensively on and in Alito he will rule on this issue. The It is time to end this debate. It is which he is a legal scholar. Democrats don’t know, the Repub- time to confirm the President’s nomi- He believes in a robust public square, licans don’t know, I don’t know. This is nation of Judge Samuel Alito. a public square where we can celebrate an issue I care deeply about, and we I suggest the absence of a quorum. faith, and where faith can be presented. don’t know. That is probably as it The PRESIDING OFFICER (Mr. He believes in this for all faiths and should be because it is an area of active BURR). The clerk will call the roll. case law and one that is going to come The legislative clerk proceeded to faith traditions. You see that in cases in front of us. call the roll. where he has ruled in favor of menorah The other area he was challenged so Mr. BROWNBACK. Mr. President, I candles being put forward, Christmas much on was Executive rights and ask unanimous consent that the order trees, and Muslim police officers being privileges. I believe this man will be for the quorum call be rescinded. able to dress appropriately to their re- The PRESIDING OFFICER. Without ligion and still be able to be police offi- very clear in standing up to the execu- objection, it is so ordered. The Senator cers. tive branch when the executive branch from Kansas. He believes in a separation of church needs to be held in check. I have no Mr. BROWNBACK. Mr. President, I and state, but he also believes this is a doubt at all about that. know there are a number of people who country full of people of faith and that One area we talked about that has wish to speak on Judge Alito. I want to they should, under the free expression not again gotten much review, but add a few comments of my own on this clause, be allowed to express and to needs a lot, is the area of judicial re- nomination. If I may inquire of the live that faith and to be able to show straint. We need a judiciary that will Chair, is there time that needs to be it. I think he is very clear and thought- restrain itself. There are three separate yielded? ful. branches of Government, each having a The PRESIDING OFFICER. The Sen- If there is an area of the law that sphere and not to overlap the other. ator may speak up until 4 o’clock. needs clarity, it is this because we have The judiciary has not restrained itself Mr. BROWNBACK. I thank the Chair. rules and tests all over the country. I in the past. Judge Alito, along with Mr. President, I sat in on the hear- think he is going to contribute in this John Roberts, previously coming be- ings for Judge Alito. I personally inter- area. This is one of the areas that did fore the committee and this body, both viewed Judge Alito. I talked with him not get much review, it did not get spoke significantly and clearly about in my office. I sat through the hearings much comment, but I think he is going the need for judicial restraint. I believe and was able to question him in the Ju- to make a clear impression, and I think if we don’t start seeing a judiciary that diciary Committee. I am on the Judici- he is going to make a very helpful im- shows some restraint and says it is not ary Committee, so I sat through those pression for this Nation whose motto, an all-powerful judiciary in every area, hearings to hear his testimony. I feel as the Chair looks at it, is ‘‘In God We it cannot appropriate money, that is as if we had a good chance to take the Trust.’’ left to the Congress, that we will start measure of the man, and he is out- There is a reason for that. This is a to see these bodies remove judicial re- standing. I believe he is going to be an nation of faith. It is one we seek to cel- view by the Congress, as is allowed in outstanding jurist. ebrate, not have an imprimatur from the Constitution. It is not an area that He answered hundreds of questions, the state saying this is the religion or has been used much, but I think we are more than I believe any prior nominee that is the religion, but rather saying going to start seeing it used much

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In short, they don’t meas- Court where nine individuals determine the 60 votes necessary to end debate. ure what will happen to average Ameri- what our Constitution protects and He is one of the most qualified individ- cans if Judge Alito becomes Justice what our laws mean. Once Judge Alito uals we have had. His is a beautiful Alito. That is our job. is confirmed, we can never take back story of immigrant parents coming to None of these measurements consider this vote. Not after he prevents many the United States and working hard to whether Judge Alito routinely cuts off Americans from having their discrimi- get a good education. access to justice for the most disadvan- nation cases heard by a jury. Not after He is one of sterling character. Prob- taged Americans—those that need it he allows more government intrusions ably one of the saddest chapters that the most. They don’t ask whether he into our private lives. Not after he has taken place is the challenge to his consistently excuses excessive govern- grants the President the power to ig- character, which is nothing short of ment force when it intrudes into the nore Federal law rather than pro- sterling. This is a gentleman who has privacy of individuals. They don’t con- tecting our system of checks and bal- worked all his life to uphold the tradi- sider that the only statement he has ances. These questions do not arise out tions of his family, to make his family ever made about a woman’s right to of speculation. They do not arise out of proud and see his dad pleased that his privacy is that she doesn’t have one. mere statement. They arise out of the son stood for right against wrong. These are things that we must con- record the judge has carved for himself. At the end of the day, I believe he sider here in the United States Senate. These issues and the threat that will exercise justice and righteousness, These are things that are on the line in Judge Alito’s nomination poses to the doing both what is just and what is this vote this afternoon. And these are balance that the Supreme Court has right. That is what we need in this the things that I believe most Ameri- upheld in all the years that Justice country, a country that is both just cans want us to consider. We have to O’Connor has served there—all of this and right. consider whether a judge we confirm to constitutes an ‘‘extraordinary cir- In the greatest traditions of this Na- a lifetime appointment to the Supreme cumstance.’’ tion, we need to do what is right, and Court will undermine the laws that we I understand that many Senators op- we need to be just to the strong, to the have already passed that benefit mil- pose this nomination, and I believe the weak, to those who cannot speak for lions of Americans, like the Family vote tomorrow will indicate that if we themselves. We need to stand up and Medical Leave Act. We have to con- are not successful today. They say that speak for their rights even if they can- sider whether Judge Alito will place they understand the threat Judge Alito not speak for their own. barriers in the way of addressing dis- poses, but they argue that somehow a vote to extend debate, when there have I support the nomination and yield crimination, whether he will serve as been a mere 30 hours or so of debate, is the floor. an effective check on the abuse of exec- different. I do not believe it is. I be- The PRESIDING OFFICER. Under utive power, whether he will roll back lieve it is the only way that those of us the previous order, the hour of 4 p.m. women’s privacy rights or whether he in the minority have a real voice in the having arrived, the Democratic leader will enforce the rights and liberties selection of this Justice or any Justice. or his designee shall be recognized for that generations of Americans have It is the only way we can fully com- 15 minutes. fought and bled and even died to pro- plete our constitutional duty of advice Mr. KERRY. Mr. President, I yield tect. None of the rights we are talking and consent. It is the only way we can myself 7 minutes. about came easily in this country. be a voice for those Americans who do The PRESIDING OFFICER. The Sen- There were always those in positions of ator from Massachusetts. not have a voice today. It is the only power who fought back and resisted. way we can stop a confirmation that Mr. KERRY. Mr. President, I have What we need in a Justice is somebody heard a lot of my colleagues rely on we feel will certainly cause irreversible who is sensitive to that history. Sen- harm to the principles and values that the ABA’s determination that Judge ator after Senator has described spe- Alito is ‘‘well qualified’’ as a reason— make a real difference in the lives of cific cases and the way in which Judge average Americans. It is the only way sometimes as reason enough—to vote Alito has had a negative impact in we can keep faith with our belief, and for his confirmation. But there is a rea- these areas—often standing alone, in the Constitution’s promise, of equal son why an ABA ranking alone is not dissent against mainstream beliefs. justice. That is a position that we can all that is required to be confirmed to This long record is a record that gave and we should defend anywhere, at any the bench, let alone the highest Court the extreme right wing cause for public time. in the land. celebration with his nomination. That I thank those who have stood to be With a decision as fundamental—as just about tells you what you need to counted in this effort and who will con- irrevocable—and as important to the know. The vote today is whether we tinue to take a stand with their vote. I American people as the confirmation of will take a stand against ideological particularly thank my senior colleague a Supreme Court Justice, it is impor- courtpacking. from Massachusetts, Senator KENNEDY. tant we tell the Americans the full Nothing can erase Judge Alito’s I think the remainder of the time story about the ABA and those record. We all know what we are get- Senator KENNEDY will use. rankings. ting. No one will be able to say, in 5 to Mr. KENNEDY. I have 71⁄2 minutes, When making its determination, the 10 years, that they are surprised by the am I correct in that? ABA considers analytical skills. They decisions Judge Alito makes from the The PRESIDING OFFICER. The Sen- consider knowledge of the law. They bench. People who believe in privacy ator is correct. consider integrity, professional com- rights, who fight for the rights of the Mr. KENNEDY. I will yield myself 7 petence, and judicial temperament. most disadvantaged, who believe in minutes. But United States Senators must con- balancing the power between the Presi- First of all, I thank my friend, Sen- sider more than these criteria. dent and Congress need to take a stand ator KERRY, for his strong commitment What the ABA does not look at is the now. on this issue and his eloquence, pas- balance of the Supreme Court. What I understand that, for many, voting sion, and support of this position. This they do not look at is ideology. What for cloture on a judicial nomination is is a time in the Senate that a battle they do not look at is judicial activ- a very difficult decision, particularly needs to be fought. This vote that we ism. What they do not look at is the on this Supreme Court nominee. I also are casting with regard to Judge Alito consequences of a judge’s ideologically understand that, for some, a nomina- is going to have echoes for years and driven decisions for those who have tion must be an ‘‘extraordinary cir- years to come. It is going to be a defin- been wronged and who just want to get cumstance’’ in order to justify that ing vote about the Constitution of the

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They are concerned about the take a particular position on an issue. power. problems they are having in paying That is what is before us. We have a re- This is a nomination that I fear their oil bills. They are concerned sponsibility to try to present this to threatens the fundamental rights and about their problems in paying for the the American people. Our constituents liberties of all Americans now and for education of their children. They are who are working hard, taking care of generations to come. As astonishing as troubled by what they see as a result of their kids, trying to do a job across the facts may seem, it does not over- Katrina. They are bothered by what this country—they are beginning to state them to point out that the Presi- they hear about the corruption in focus on it. It came to the Senate floor dent is in the midst of a radical re- Washington and are deeply troubled by last Wednesday. Today is Monday. alignment of the powers of the govern- what is happening in Iraq. They have What is the next business? What is the ment and of its intrusiveness into the not had a chance to focus on what is next measure on the calendar? Asbes- private lives of Americans. This nomi- the meaning of this vote in the Senate tos? Isn’t that interesting? Is there nation is part and parcel of that plan. this afternoon. anything more important than spend- I am concerned that if confirmed, this But all you have to do is look back ing time and permitting the American nominee will further erode the checks into history. Look back into the his- people to understand this issue? I don’t and balances that have protected our tory of the judiciary. Look back to the believe so, and that is what our vote at constitutional rights for more than 200 history of the Fifth Circuit that was 4:30 is about. years. This is a critical nomination, making the decisions in the 1950s. Look If you are concerned and you want a one that can tip the balance on the Su- at the record of Justice Wisdom, Judge Justice who is going to stand for the preme Court radically away from con- Tuttle, Judge Johnson of Alabama and working men and women in this coun- stitutional checks and balances and the courage they demonstrated that try—it is not going to be Judge Alito. the protection of Americans’ funda- said at last we are going to break down If you are concerned about women’s mental rights. the walls of discrimination in this privacy rights, about the opportunity The procedural vote just taken was country that have gripped this Nation for women to gain fair employment in in large measure symbolic. Its result for 200 years. Our Founding Fathers America—it is not Judge Alito. If you was foreseen by Senators on both sides failed the test when they wrote slavery care about the disabled, the Rehabilita- of the aisle and on both sides of the into the Constitution. Abraham Lin- tion Act that we passed, the IDEA Act question. The next vote the Senate coln pointed the way, and we passed to include children in our schools, that takes on this critical nomination is not the 13th, 14th, and 15th amendments we passed, that has been on the books symbolic. It has real consequences in and had a Civil War, but we did not re- for 25 years, the Americans with Dis- the lives of the 295 million Americans solve this issue. It was only until the abilities Act that we have passed to alive today, and it will influence the courage of members of—what branch of bring all of the disabled into our soci- lives of generations of Americans to Government? Not the Congress. Not ety, if you are looking for someone who come. It will affect not only our rights the Senate. Not the executive. The ju- is going to be a friend of the disabled— but the fundamental rights and lib- diciary, the Fifth Circuit. We are talk- it is not going to be Judge Alito. erties of our children and our chil- ing now about the Supreme Court, but Finally, if you are looking for some- dren’s children. In short, it matters, they are the ones who changed this one who is going to be willing to stand and it matters greatly. The vote the up to the executive branch of Govern- country inevitably with what we call Senate will take tomorrow will deter- ment at a time that he is going to ex- the march toward progress, the march mine whether Samuel A. Alito, Jr., re- ceed his power and authority and the toward knocking down the walls of dis- places Justice Sandra Day O’Connor on law of this country—it is not going to crimination that permitted us to pass the Supreme Court of the United be Judge Alito. It is not going to be. He the 1964 Civil Rights Act in public ac- States. commodations, so people whose skin is not going to be similar to Sandra I appreciate why Senators who voted was not White could go into res- Day O’Connor who, in the Hamdi case, against cloture believe this matter de- taurants and hotels—public accom- said: Oh, no. No President, even in serves more searching attention by times of war, is above the law in this modations; the 1965 act for voting, vot- Senators and the American people. country. He is not going to be similar ing rights; the 1968 act on public ac- Among Democratic Senators, each is to Warren Burger, who said ‘‘No, Mr. commodations; the 1973 act to say that voting his or her conscience and best President. No, you have to surrender women are going to be treated equally; judgment. There will be many Demo- the papers,’’ at the time of the Water- the Americans with Disabilities Act cratic Senators who, like the Demo- gate break-ins. ‘‘No, Mr. President.’’ that say the disabled are going to be This is the time. This is the issue. cratic members of the Judiciary Com- part of the American family. All of This happens to be the wrong judge at mittee who have closely studied the that is the march to progress. My the wrong time for the wrong Court. record of this nominee, will be voting friends, the one organization, the one I hope this body will give us the time against the nomination. There will be institution that protects it is the Su- to be able to explain this in greater de- some Democratic Senators who will preme Court of the United States. tail to our fellow Americans so a real vote to confirm the nominee. Among Too much blood has been shed in vote can be taken. When it is, I believe those voting against, there are some those battles, too much sweat, too this nominee will not be approved. who believe that it is not appropriate many tears, to put at risk that march I understand my time has expired. to withhold the Senate’s consent by ex- for progress. And that is what we are Mr. LEAHY. Mr. President, I began tending debate. The Senate debated doing with this nominee. He failed to the hearing on this nomination by put- Chief Justice Roberts’ nomination dur- demonstrate before the Judiciary Com- ting forward what for me was the ulti- ing 8 days and over a 10-day calendar mittee that he was committed to the mate question during the consideration period. Although much more divisive continued march toward progress. He of a successor to Justice Sandra Day and controversial, the Alito nomina- doesn’t have to say how he is going to O’Connor: Would Judge Alito, if con- tion will be debated for just 5 days over vote on a particular case, but he has to firmed by the Senate to the Supreme a 7-day calendar period by the time the make it clear that he understands what Court, protect the rights and liberties vote is called tomorrow. this Nation is all about, why we are the of all Americans and serve as an effec- It is true that Democratic Senators envy of the world with the progress tive check on government over- do not all vote in lockstep. Each Demo- that we have made to knock down the reaching? cratic Senator individually gives these walls of discrimination and prejudice Since this debate began last Wednes- questions serious consideration. They and open up new opportunities for day, I have posed the fundamental honor their constitutional duty. I am

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He did so three Supreme Court nominations over was here and, along with the other after the death of the Chief Justice and the last few months is to be com- Senators, both Republican and Demo- withdrawing his earlier nomination of mended. I thank and commend the cratic, who voted to defeat that nomi- Judge Roberts to succeed Justice many Democratic Senators who came nation, I know that the nominee’s O’Connor. The democratic leader of the to the floor, who spoke, who set forth views were the decisive factor in his Senate quickly endorsed the selection their concerns and their views. That failure. His rejection of the constitu- of Ms. Miers as the kind of person, with includes Democratic Senators opposing tional right to privacy was a large part the kind of background, he found ap- the nomination and those in favor. It is of his own undoing. Soon thereafter, pealing. Democratic Senators went quite a roster: Senators KENNEDY, DUR- President Reagan announced and with- about the serious business of preparing BIN, MIKULSKI, CLINTON, KERRY, NELSON drew the nomination of Judge Ginsburg for hearings on the Miers nomination. of Florida, REED, MURRAY, FEINSTEIN, and then turned to a conservative Fed- But there were those from among the INOUYE, HARKIN, BINGAMAN, LINCOLN, eral appellate court judge from Cali- President’s supporters who castigated LIEBERMAN, SALAZAR, CARPER, LEVIN, fornia named Anthony Kennedy. Jus- Ms. Miers and the President for the OBAMA, DAYTON, FEINGOLD, JOHNSON, tice Kennedy, though conservative, was nomination. The President succumbed SARBANES, STABENOW, LAUTENBERG, confirmed overwhelmingly and in bi- to the partisan pressure from the ex- MENENDEZ, and, in addition, Senator partisan fashion. He continues to serve treme rightwing of his own party by JEFFORDS. These Senators approached as a respected Justice who has au- withdrawing his nomination of Harriet the matter seriously, in contrast to thored key decisions protecting Ameri- Miers to the Supreme Court after re- those partisan cheerleaders who rallied cans from unfair discrimination be- peatedly saying that he would never do behind this White House’s pick long be- cause of their sexual orientation. so. In essence, he allowed his choice to When the Senate was considering a fore the first day of hearings. be vetoed by an extreme faction within I respect those Senators who are giv- successor to Justice Powell almost 20 his party, before hearings or a vote. As years ago, I said that I believed a Su- ing this critical nomination serious Chairman SPECTER has often said, they consideration but come to a different preme Court nominee’s judicial philos- ran her out of town on a rail. In fact, conclusion than I, just as I continue to ophy should play a central role in our of course, she has remained in town as consideration. I noted: respect the 22 Senators who voted the President’s counsel, but his point is against the Roberts nomination. I have There is no question that the nominee who correct. Like the more than 60 mod- is confirmed to succeed Justice Lewis Powell candidly acknowledged that over the will be uniquely influential in determining erate and qualified judicial nominees of course of history, their judgment and the direction of the Supreme Court’s inter- President Clinton on whom Repub- vote may prove right. I took Judge pretation of the Constitution for years to licans would neither hold hearings or Roberts at his word in the belief that come. There can hardly be an issue closer to votes, the Miers nomination was killed his words and the impressions he un- the heart of the Senate’s role than a full and by Republicans without a vote—by derstood them to be creating had public exposition of the nominee’s approach what was in essence a pocket filibuster. meaning. I continue to hope that as to the Constitution and to the rule of the That eye-opening experience for the courts in discerning and enforcing its com- Chief Justice he will fulfill his promise mands. That is what I mean by judicial phi- country demonstrated what a vocal and steer the Court to serve as an ap- losophy. faction of the Republican Party really propriate check on abuses of Presi- The same remains true today as we wants. Their rightwing litmus test de- dential power and protect the funda- consider a successor to Justice Sandra mands justice and judges who will mental liberties and rights of all Amer- Day O’Connor. I strongly believe that guarantee the results that they want. icans. Judge Alito’s judicial philosophy is too They do not want an independent fed- Filibusters of judicial nominees— deferential to the government and too eral judiciary. They want certain re- and, in particular, of Supreme Court unprotective of the fundamental lib- sults. nominees—are hardly something new. erties and rights of ordinary Americans Instead of uniting the country When Justice Fortas was nominated by for his nomination by President Bush through his third choice to succeed President Johnson to be the Chief Jus- to be confirmed by the Senate as the Justice O’Connor, the President has tice, a filibuster led by Strom Thur- replacement for Justice O’Connor. chosen to reward one faction of his mond and the Republican leader re- Judicial philosophy comes into play party, at the risk of dividing the coun- sulted in an unsuccessful cloture vote time and again as Supreme Court jus- try. Those so critical of his choice of and in that nomination being with- tices wrestle with serious questions Harriet Miers as a nominee were the drawn. That was the most recent suc- about which they do not all agree. very people who rushed to endorse the cessful filibuster of a Supreme Court These include fundamental questions nomination of Judge Alito. Instead of nominee. But that was not the first or about how far the government may in- rewarding his most virulent sup- last Supreme Court nomination to be trude into our personal lives. Senators porters, the President should have re- defeated. President George Wash- need to assess whether a nominee will warded the American people with a ington, the Nation’s first and most protect fundamental rights if con- unifying choice that would have broad popular President, saw the Senate re- firmed to be on the Supreme Court. support. America could have done bet- ject his nomination of John Rutledge Several Republican Senators said ter through consultation to select one to the Supreme Court at the outset of that judicial philosophy and personal of the many consensus conservative our history. Over time approximately views do not matter because judges Republican candidates who could have one-fifth of Presidents’ Supreme Court should just apply the rule of law as if been overwhelmingly approved by the nominees have not been confirmed. it were some mechanical calculation. Senate. Instead, without consultation, The last time the country was faced Senator FEINSTEIN made this point ex- the President withdrew the Miers nom- with the retirement of the pivotal vote ceptionally well during the debate. ination and the next day announced on the Supreme Court was when Jus- Personal views and judicial philosophy that his third choice to succeed Justice tice Lewis Powell resigned in 1987. A often come into play on close and con- O’Connor was Judge Alito. Republican President sought to use troversial cases. We all know this to be At his hearing, Judge Alito began by that opportunity to reshape the U.S. true. Why else did Republican sup- asking how he got this critical nomina- Supreme Court with his nomination of porters force President Bush to with- tion. Over the course of the hearings, I Judge Robert Bork. Judge Bork had draw his previous nominee for this va- think we began to understand the real been a law professor, a partner in one cancy, Harriet Miers, before she even answer to that question. It has little to of the Nation’s leading law firms, a had a hearing? She failed their judicial do with Judge Alito’s family story and judge on the DC Circuit for 5 years, and philosophy litmus test. a great deal to do with the pressures

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I will ask that a copy of that job promised to be a uniter, not a divider, dropping on Americans for more than 4 application be printed in the RECORD at failed to live up to his promise or to years. This President has made the the conclusion of my statement so that the example of his predecessor, as de- most expansive claims of power since the American people can see it. scribed by Senator HATCH. The result is American patriots fought the war of This confirmation process is the op- that, rather than sending us a nominee independence to rid themselves of the portunity for the American people to for all Americans, the President chose overbearing power of King George III. learn what Samuel Alito thinks about a divisive nominee who raises grave He has done so to justify illegal spying their fundamental constitutional concerns about whether he will be a on Americans, to justify actions that rights and whether he will serve to pro- check on Presidential power and violate our values and laws against tor- tect their liberty, their privacy and whether he understands the role of the ture and protecting human rights, and their autonomy from Government in- courts in protecting fundamental in order to detain U.S. citizens and trusion. The Supreme Court belongs to rights. others on his say so without judicial all Americans, not just the person oc- The Supreme Court is the ultimate review or due process. This is a time in cupying the White House, and not just check and balance in our system. Inde- our history when the protections of to a narrow faction of a political party. pendence of the courts and its members Americans’ liberties are at risk as are We have heard from Judge Alito’s is crucial to our democracy and way of the checks and balances that have supporters that those opposing this life. The Senate should never be al- served to constrain abuses of power for nomination were ‘‘smearing’’ him by lowed to become a rubberstamp, and more than 200 years. asking substantive and probing ques- neither should the Supreme Court. Judge Alito’s opening statement tions at the hearing and by addressing This is a nomination to a lifetime skipped over the reasons he was cho- concerns about his record during this seat on the Nation’s highest Court that sen. He ignored his seeking political debate. The Republican leader opened has often represented the decisive vote appointment within the Meese Justice the debate with that attack. He said on constitutional issues. The Senate Department by proclaiming his com- this before a single minute of debate or needs to make an informed decision mitment to an extreme and activist opening statement by any Democratic about this nomination. This process is rightwing legal philosophy. His testi- Senator. These Republican talking the only opportunity that the Amer- mony sought to minimize the Fed- points ring hollow and are particularly ican people and their representatives eralist Society and his seeking to use inappropriate after President Bush was have to consider the suitability of the membership in Concerned Alumni of forced by an extreme faction in his own nominee to serve as a final arbiter of Princeton for advancement. He at- party to withdraw his nomination of the meaning of Constitution and the tempted to revise and redefine the the- Harriet Miers. law. Has he demonstrated a commit- ory of the ‘‘unitary executive.’’ That is Democratic Senators should not be ment to the fundamental rights of all a legal underpinning being used by this criticized for taking seriously their Americans? Will he allow the govern- President and his supporters to at- constitutional role in trying to assess ment to intrude on Americans’ per- tempt to justify his assertions of vir- whether Judge Alito is suitable for a sonal privacy and freedoms? tually unlimited power. The President lifetime position on the Supreme In a time when this administration wanted a reliable Justice who would Court. Democrats also asked tough seems intent on accumulating un- uphold his assertions of power, his questions of Justices Ginsburg and checked power, Judge Alito’s views on most extreme supporters want someone Breyer during their confirmation hear- government power are especially im- who will revisit the constitutional pro- ings, which is in stark contrast to the portant. It is important to know tection of privacy rights, and the busi- free pass given to Judge Alito by Re- whether he would serve with judicial ness supporters wanted someone favor- publican Senators during his hearing. independence or as a surrogate for the able to powerful special interests. Those critical of the Democrats have President who nominated him. Based Supreme Court nominations should a short and selective historical mem- on a thorough review of his record and not be conducted through a series of ory. Republican Senators engaged in a that from his hearing, I have no con- winks and nods designed to reassure party-line vote in committee against fidence that he will act as an effective the most extreme Republican factions the nomination of Louis Brandeis to check on government overreaching and while leaving the American people in the Supreme Court. Republican Sen- abuses of power. the dark. No President should be al- ators, in an unprecedented party-line As we began the hearings, I recalled lowed to pack the courts, and espe- vote, blocked the nomination in 1999 of the photograph that hangs in the Na- cially the Supreme Court, with nomi- Missouri Supreme Court Justice Ron- tional Constitution Center in Philadel- nees selected to enshrine Presidential nie White, an extremely qualified phia, PA. It shows the first woman ever claims of government power. The nominee for a Federal district court to serve on the Supreme Court of the checks and balances that should be judgeship. In fact, Republicans pocket- United States taking the oath of office provided by the courts, Congress, and filibustered more than 60 of President in 1981. Justice Sandra Day O’Connor the Constitution are too important to Clinton’s judicial nominees by holding served as a model Supreme Court Jus- be sacrificed to a narrow, partisan them up in the Judiciary Committee. tice. agenda. The Senate stood up to Presi- This President continues to choose She is widely recognized as a jurist dent Roosevelt when he proposed a confrontation over consensus and to be with practical values and a sense of the court-packing scheme and should not a divider rather than being the uniter consequences of the legal decisions be a rubberstamp to this President’s ef- that he promised to be. This is in stark being made by the Supreme Court. I re- fort to move the law dramatically to contrast to President Clinton’s selec- gret that some on the extreme right the right. I do not intend to lend my tion of Justices Ginsburg and Breyer have been so critical of Justice O’Con- support to an effort by this President after real consultation. In his book, nor and have adamantly opposed the to undermine checks and balances or to ‘‘Square Peg,’’ Senator HATCH de- naming of a successor who shares her move the Supreme Court and the law scribed how in 1993, as the ranking mi- judicial philosophy and qualities. Their radically to the right. nority member of the Senate Judiciary criticism reflects poorly upon them. It So what do we know about the Sam- Committee, he advised President Clin- does nothing to tarnish the record of uel Alito who graduated from Prince- ton about possible Supreme Court the first woman to serve as an Asso- ton University and Yale Law School nominees. Senator HATCH recounted ciate Justice of the Supreme Court of and obtained a plum job in the office of that he warned President Clinton away the United States. She is a Justice the Solicitor General of the United from a nominee whose confirmation he whose graciousness and sense of duty

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00040 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.076 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S299 fuels her continued service nearly 7 Parker, and recommended another Re- ministration. It is obviously very difficult to months after she announced her inten- publican to President Bush to fill that summarize a set of political views in a sen- tion to retire. seat after Judger Parker’s death, Judge tence but, in capsule form, I believe very As the Senate prepares to vote on strongly in limited government, federalism, Peter Hall. I voted for President Rea- free enterprise, the supremacy of the elected President Bush’s current nomination— gan’s nomination of Justice Sandra branches of government, the need for a his third—for a successor to Justice Day O’Connor, for President Reagan’s strong defense and effective law enforce- O’Connor, we should be mindful of her nomination of Justice Anthony Ken- ment, and the legitimacy of a government critical role on the Supreme Court. Her nedy, for President Bush’s nomination role in protecting traditional values. In the legacy is one of fairness that I want to of Justice Souter, and for this Presi- field of law, I disagree strenuously with the see preserved. Justice O’Connor has dent’s recent nomination of Chief Jus- usurpation by the judiciary decisionmaking been a guardian of the protections the tice Roberts. In fact, I have voted for authority that should be exercised by the Constitution provides the American branches of government responsible to the eight of the nine current Justices of electorate. The Administration has already people. the Supreme Court. made major strides toward reversing this Of fundamental importance, she has I want all Americans to know that trend through its judicial appointments, liti- come to provide balance and a check on the Supreme Court will protect their gation, and public debate, and it is my hope government intrusion into our personal rights and will respect the authority of that even greater advances can be achieved privacy and freedoms. In the Hamdi de- Congress to act in their interest. I during the second term, especially with At- cision, she rejected the Bush adminis- want a Supreme Court that acts in its torney Meese’s leadership at the Department tration’s claim that it could indefi- of Justice. finest tradition as a source of justice. When I first became interested in govern- nitely detain a U.S. citizen. She upheld The Supreme Court must be an institu- ment and politics during the 1960s, the great- the fundamental principle of judicial tion where the Bill or Rights and est influences on my views were the writings review over the exercise of government human dignity are honored. In good of William F. Buckley, Jr., the National Re- power and wrote that even war ‘‘is not conscience, based on the record, I can- view, and Barry Goldwater’s 1964 campaign. a blank check for the President when it not vote for this nomination. I urge all In college, I developed a deep interest in con- comes to the rights of the Nation’s Senators to use this last night of de- stitutional law, motivated in large part by citizens.’’ She held that even this bate to consult their consciences and disagreement with Warren Court decisions particularly in the areas of criminal proce- President is not above the law. their best judgment before casting Her judgment has also been crucial in dure, the Establishment Clause, and reappor- their votes tomorrow. That vote will tionment. I discovered the writings of Alex- protecting our environmental rights. matter. ander Bickel advocating judicial restraint, She joined in 5-to-4 majorities affirm- In my 30 years in the Senate, I have and it was largely for this reason that I de- ing reproductive freedom, religious cast almost 12,000 votes here in the cided to go to Yale Law School. freedom, and the Voting Rights Act. Senate. Few will be as important as After graduation from law school, comple- Each of these cases makes clear how the vote we cast tomorrow. tion of my ROTC military commitment, and important a single Supreme Court Jus- Mr. President, I now ask unanimous a judicial clerkship, I joined the U.S. Attor- ney’s office in New Jersey, principally be- tice is. consent that the application to which I It is as the elected representatives of cause of my strong views regarding law en- referred be printed in the RECORD. forcement. the American people—all of the peo- There being no objection, the mate- Most recently, it has been an honor and ple—that we in the Senate are charged rial was ordered to be printed in the source of personal satisfaction for me to with the responsibility to examine RECORD, as follows: serve in the office of the Solicitor General during President Reagan’s administration whether to entrust their precious PPO NON-CAREER APPOINTMENT FORM rights and liberties to this nominee. and to help to advance legal positions in From: Mark R. Levin. which I personally believe very strongly. I The Constitution is their document. It To: Mark Sullivan. Associate Director, guarantees their rights from the heavy am particularly proud of my contributions in PPO. recent cases in which the government has ar- hand of government intrusion and their Date Sent: 11/18/85. gued in the Supreme Court that racial and individual liberties to freedom of Canadidate: Samuel A. Alito, Jr., ethnic quotas should not be allowed and that speech and religion, to equal treat- Department: Department of Justice. the Constitution does not protect a right to ment, to due process and to privacy. Job Title: Deputy Assistant Attorney Gen- an abortion. The Federal judiciary is unlike the eral. As a federal employee subject to the Hatch other branches of Government. Once Grade: ES–I. Act for nearly a decade, I have been unable Supervisor: Charles J. Cooper. to take a role in partisan politics. However, confirmed, Federal judges serve for Race: White. life. There is no court above the Su- I am a life-long registered Republican and Sex: Male. have made the sort of modest political con- preme Court of the United States. The Date of Birth: Apr. 1, 1950. tributions that a federal employee can afford American people deserve a Supreme Home State: New Jersey. to Republican candidates and conservative Court Justice who inspires confidence Previous Government Service: Yes. causes, including the National Republican that he, or she, will not be beholden to If yes, give departments, dates career or Congressional Committee, the National Con- the President but will be immune to non-career positions held: Assistant to the servative Political Action Committee, Rep. pressures from the government or from Solicitor General, Dept. of Justice, 1981 to Christopher Smith (4th Dist. N.J.), Rep. present; Assistant U.S. Attorney, N.J., 1977– James Courter (12th Dist. N.J.), Governor partisan interests. 1981; Law clerk to Judge Leonard I. Garth, The stakes for the American people Thomas Kean of N.J., and Jeff Bell’s 1982 U.S. Court of Appeals, Third Cir., 1976–1977, Senate primary campaign in N.J. I am a could not be higher. At this critical A complete Form 171, political and per- member of the Federalist Society for Law moment, Democratic Senators are per- sonal resumes, complete job description, and and Public Policy and a regular participant forming our constitutional advice and letters of support must be included for White at its luncheon meetings and a member of consent responsibility with heightened House clearance to begin. the Concerned Alumni of Princeton Univer- vigilance. I urge all Senators—Repub- 1980 Domicile (State): New Jersey. sity, a conservative alumni group. During licans, Democrats and Independents— Please provide any information that you the past year, I have submitted articles for regard as pertinent to your philosophical publication in the National Review and the to join with us. The Supreme Court is commitment to the policies of this adminis- the guarantor of the liberties of all American Spectator. tration, or would show that you are qualified Applicant Signature: Samuel A. Alito, Jr. Americans. The appointment of the to effectively fill a position involved in the Date: Nov. 15, 1985 next Supreme Court Justice must be development, advocacy and vigorous imple- Associate Director Recommendation: Ap- made in the people’s interest and in the mentation of those policies. proved, Mark Sullivan. Nation’s interest, not to serve the spe- Have you ever served on a political com- Mr. DORGAN. We work on many im- cial interests of a partisan faction. mittee or been identified in a public way portant issues here in the Congress, but I have voted for the vast majority of with a particular political organization, can- none more important than choosing a President Reagan’s, President Bush’s, didate or issue? (Please be specific and include contacts Justice to serve on the Supreme Court. and President Bush’s judicial nomi- with telephone numbers.) Providing a lifetime appointment to nees. I recommended a Republican to I am and always have been a conservative the U.S. Supreme Court is a very seri- President Clinton to fill Vermont’s and an adherent to the same philosophical ous matter for both the President and seat on the Second Circuit, Judge Fred views that I believe are central to this Ad- the U.S. Senate. Our choice will impact

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00041 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.078 S30JAPT1 ycherry on PROD1PC64 with SENATE S300 CONGRESSIONAL RECORD — SENATE January 30, 2006 our country well beyond the term of of- I am also concerned by Judge Alito’s President when the checks and bal- fice for the President and for most of view of what is referred to as the uni- ances in our Constitution are on the the Senate. tary executive. This is an issue about line. Those nominations are also very im- Presidential power in our form of gov- I will not support a filibuster because portant to the citizens of our country ernment. The judicial branch of Gov- I see it as an attempt to delay his cer- and my State of North Dakota, many ernment is designed to be a check and tain confirmation. But I will register of whom—on both sides—have con- balance on the expansion of Presi- my grave concerns about Judge Alito’s tacted my office and whose counsel I dential powers. I believe Judge Alito’s nomination to the Supreme Court by have heard and valued. answers in the Judiciary Committee to voting against confirmation when that This is the second nomination for the questions about the unitary executive final vote is before us. U.S. Supreme Court that has been sent tilt toward showing deference toward My decision is the result of a long to the Senate by President Bush in the expanded and unchecked Presidential and deliberative process. span of a few short months. authority. His views on this issue con- As my record plainly shows, I have During consideration of the nomina- cern me. never applied a partisan or ideological tion of Judge John Roberts to become For all of these reasons, I have de- litmus test to nominees. George W. Chief Justice of the Supreme Court, I cided to cast my vote against the nom- Bush was elected as a conservative studied his record carefully. I reviewed ination of Judge Samuel Alito. I take President, and I have supported his the hearing records of his appearance no joy in opposing his nomination, but conservative choices at every level. On before the Senate Judiciary committee for the reasons I have mentioned the judiciary alone, I have voted to as well as his record as a Federal judge above, I am not comfortable voting to confirm 203 out of 212 judges nominated on the Circuit Court. confirm him for a lifetime appointment by President Bush. Just 4 months ago, And in the end, I voted to confirm on our Nation’s highest Court. I voted in support of Chief Justice John Judge Roberts. I concluded that he was Over the years, I have supported Roberts, a true conservative, because I very well qualified, and I also felt after about 97 percent of the nominees for concluded that he would consider fully meeting with him that he would not the Federal court sent to us by Presi- the lives of average people, the lives of bring an ideological agenda to his work dent Bush. My record has been one of those in need and those whose voices of interpreting the U.S. Constitution. substantial support for the President’s often are not heard. I believed on bal- In short, I felt he would make a fine nominees. ance that he would be his own man in Chief Justice. The Supreme Court nomination we But for me, a nomination to the Su- the face of inevitable outside pressures. In recent weeks and months, I have are now considering is that of Judge preme Court carries much more weight heard from hundreds of West Vir- Samuel Alito. and greater potential consequences for This has been a difficult decision for the country. ginians through letters, telephone me. Judge Alito is replacing Justice San- calls, and personal conversations. Judge Alito has substantial creden- dra Day O’Connor on the Court. Justice Many have expressed strong opposition tials. His education, work history, and O’Connor has been a key swing vote on to Judge Alito, and many have ex- his 15 years of service on the Circuit so many issues that have been decided pressed strong support for him. I have Court are significant. by a 5-to-4 vote in recent years. weighed all of their views carefully. However, in evaluating Judge Alito’s I believe that Judge Alito’s nomina- I also have labored over Judge Alito’s rulings, writings, and his responses tion, if approved by the Senate, would record—his early writings, his rulings, during his nomination hearings, I have tilt that Court in a direction that will his speeches, and his Senate testi- been troubled by several things. restrict personal freedoms, strengthen mony—and I met personally with First, he has a clear record over the role of government and corpora- Judge Alito. I wanted to hear directly many years of a tendency to favor the tions in our lives, and allow the expan- from him, in his own words, what kind big interests over the small interests. sion of power of the Presidency. of an Associate Justice he would be. That is, when an individual is seeking For those reasons, I have decided to There is no question he is an intel- justice in the courts by taking on the vote no on this nomination. ligent man with a deep knowledge of government or a large corporation, Mr. ROCKEFELLER. Mr. President, I our legal system. During our conversa- Judge Alito’s rulings are often at odds rise today to share my thoughts and tions, he was a gentleman in every with the rulings of his colleagues on concerns about the President’s nomina- sense of the word. But for me these im- the Court and tend to overwhelmingly tion of Samuel Alito to be an Associate portant character traits are not favor the government or the big inter- Justice on the U.S. Supreme Court. enough to warrant elevation to the ests. It goes without saying that the deci- U.S. Supreme Court. People who live in small States like sion whether to confirm a nominee for I have concluded that although Judge North Dakota have, over many years, a lifetime position on the Supreme Alito is a well-qualified jurist, I cannot found it necessary to use the courts to Court is among the Senate’s most seri- in good conscience support a nominee take on the big economic interests. ous and solemn constitutional obliga- whose core beliefs and judicial record Whether it is taking on big corpora- tions. exhibit simply too much deference to tions, the railroads, big financial inter- My ultimate test for whether to sup- power at the expense of the individual. ests, or the U.S. Government, as farm- port a nominee to the Supreme Court Particularly in the committee hear- ers have had to do in recent decades, I rests with two questions: will the ings, when pressed on issues such as in- think it is important that a Supreme nominee protect the best interests of dividual rights and Presidential pow- Court Justice be someone who will give West Virginians and will the nominee ers, Judge Alito’s answers troubled the people a fair hearing. uphold the fundamental rights and me—they were limited and perfunc- Judge Alito’s rulings on the circuit freedoms of all Americans that are set tory. I was left with a strong sense of court have, I believe, tilted heavily on out in the Constitution and in our his ability to recite and analyze the the side of the big interests. laws. It is a high standard, as it must law as it stands but with very little One of the key questions for me be for a lifetime appointment to the sense of his appreciation for the prin- about a new Justice for the Supreme highest Court in the land. ciples and the real people behind those Court is ‘‘will this person interpret the In the last few weeks and months, laws. Constitution in a manner that expands through careful consideration, I have Unfortunately, Judge Alito’s record personal freedom and liberty, or will attempted to answer those two ques- does not allay those concerns. As a this person interpret it in a way that tions. I have concluded that Judge government lawyer, a Federal pros- restricts personal freedom and lib- Alito’s judicial record, his writings, ecutor, and a 15-year Federal judge on erty?’’ and his statements portray a man who the Third Circuit, with lifetime tenure, I believe Judge Alito’s record is one will not do enough to stand up against Judge Alito has repeatedly sided that leans in the direction of restrict- power when the rights of average against people with few or no re- ing the freedom and liberty of indi- Americans are on the line and who will sources. The average person up against vidual citizens. not do enough to stand up against the a big corporation, an employer, or even

VerDate Aug 31 2005 02:30 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00042 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.030 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S301 the government itself, all too often Constitution? What is the appropriate he was unanimously confirmed by the comes out on the short end of the stick balance between the President and the Senate in 1990. In total, Judge Alito in front of Judge Alito. Congress? When must the constitu- has served our Nation for 30 years, I am particularly troubled by one tionally protected rights of average using his legal experience and talents case, RNS Services v. Secretary of Americans—workers’ rights, families’ for public good rather than for personal Labor. In RNS Services, Judge Alito rights, and individuals’ rights—prevail? profit. We should all applaud and sup- argued, in a lone dissent, against pro- At the end of the day, I am left with port such a record of public service, es- tecting workers in a Pennsylvania coal the fear that Judge Alito brings to the pecially when you consider the fact plant by not enforcing the jurisdiction Court a longstanding bias in favor of that Judge Alito has more judicial ex- of the Mine Safety and Health Admin- an all-powerful presidency and against perience than any Supreme Court istration, MSHA. Judge Alito claimed West Virginians’ basic needs and inter- nominee in over 70 years. that the coal processing plant was clos- ests. Unfortunately, however, there are a er to a factory than a mine, and there- Mr. LEVIN. Mr. President, while I number of my colleagues from across fore should be governed by the more le- had expected that the Senate would the aisle who somehow believe that nient Occupational Safety and Health move directly to an up-or-down vote on this record of public service is some- Administration, OSHA, standards. For- Judge Alito’s nomination to the Su- thing to deride and distort. Forget the tunately for the miners, the majority preme Court without a vote on cloture, fact that nearly everyone who has of judges in the case did not agree with because I strongly oppose this nomina- worked with Judge Alito or has taken Judge Alito, and MSHA’s standards tion, as I explained in my remarks last an impartial review of this man’s prevailed. week, and because the filibuster has record and credentials, such as the Outside the courtroom, Judge Alito been a time-honored and accepted part American Bar Association, supports has at various times in his career sug- of the checks and balances on the this nomination wholeheartedly. For- gested, directly and indirectly, that he President’s appointment powers, I will get the fact that Judge Alito has gar- supports a disproportionately powerful vote against cloture on this nomina- nered the near unanimous support of President and executive branch. As a tion. his colleagues on the Third Circuit and mid career government lawyer, his Mr. GREGG. Mr. President, I rise lawmakers from both parties—includ- writings showed a solicitous deference today to speak on the nomination of ing Governor Ed Rendell of Pennsyl- to the executive branch and a willing- Judge Samuel A. Alito, Jr., to become vania—who know him best. Forget the ness to undercut the constitutional au- an Associate Justice of the Supreme fact that Judge Alito has ruled in favor thority of Congress. As recently as Court. After following the confirma- of minorities who have alleged racial 2000, Judge Alito forcefully argued in tion process and reviewing Judge discrimination or were convicted of support of a controversial theory Alito’s qualifications, I am pleased to crimes. Forget that Judge Alito is known as the ‘‘unitary executive’’ support this nomination and congratu- known by those who have worked with which would allow the President to act late President Bush on another out- him as a good and decent man who does in contravention of the laws passed by standing pick for our Nation’s highest not put ideology over public responsi- Congress in carrying out his duties. Court. Although there are no guaran- bility. Some of my colleagues do not As vice chairman of the Senate Intel- tees about how any judicial nominee want to consider any of these facts, or ligence Committee, I have developed an will carry out his or her responsibil- they somehow distort all of them as even greater appreciation for the wis- ities once confirmed, I believe that they try to smear the President’s dom of our Nation’s Founders in cre- Judge Alito will serve our country well nominee. And why? Well, because ating a system of checks and balances as Justice Sandra Day O’Connor has Judge Alito is simply that; he is Presi- among the judicial, executive and leg- done for almost a quarter of a century dent Bush’s nominee. islative branches of Government. The As someone who supported both of interaction between the President and on the Supreme Court. To explain why I support the nomina- President Clinton’s nominations to the the Congress on matters of national se- tion of Judge Alito, let me first begin Supreme Court, I find this type of par- curity, classified and unclassified, is my remarks by referring to article II of tisanship appalling. Instead of accept- incredibly important to our safety and the U.S. Constitution—in particular, ing the obvious fact that Judge Alito is our future. Today there is a serious section 2, which states that it is up to more than well qualified to serve on legal and constitutional debate going the President to appoint individuals to the Supreme Court, some of my col- on in our country about whether the our highest Court. As he pledged to the leagues want to cherry-pick and distort President, who already has enormous inherent powers as the leader of our voters who elected him, President Bush a few opinions out of the hundreds that country, has expanded his executive has exercised his appointment powers he has written, hype up his alleged re- reach beyond the bounds of the law and to pick someone who firmly believes in lationship with a university organiza- the Constitution. The fact is the Presi- the rule of law, the importance of pro- tion, or huff and puff about the Van- dent does not write the laws, nor is he tecting the rights of all Americans, and guard recusal matter even though the charged with interpreting them—the the Founding Fathers’ wisdom of leav- American Bar Association and most Constitution is unequivocally clear ing policy decisions to the elected well regarded legal ethics experts have that lawmaking resides with the Con- branches of Government. The President found nothing unethical. As opposed to gress and interpretation resides with has followed through on his promise to qualifications, some of my colleagues the courts—yet this President, on the American people by choosing Judge across the aisle want to focus solely on many fronts, is attempting to do both. Alito. these petty matters that are borne This alarming trend has been exacer- With that said, Judge Alito is not simply out of personal vendetta or the bated by the fact that we have a single simply the fulfillment of a campaign echo chamber of liberal blogs. They party controlling both the White House promise—he is also one of the sharpest now want the Senate and the American and the Congress, resulting in minimal legal minds in the Federal appellate people to forget everything else and congressional oversight of an over- ranks and a dedicated public servant. A base this important vote on a few dubi- reaching executive branch. former editor of the Yale Law Journal ous claims. The Supreme Court, in the coming and Army reservist, Judge Alito has None of this is healthy for the Senate months and years, will be forced to served as a law clerk for Judge Leonard or for our Nation. It does not take a ge- rule on any cases related to expansion Garth of the Third Circuit, an assistant nius to realize that most Americans of Executive power. This nominee will U.S. attorney for New Jersey, an As- are tired of this petty partisanship, and play a pivotal role in settling the legal sistant to the Solicitor General, Dep- the personal attacks on Judge Alito questions of today and charting a uty Assistant Attorney General in the and the distortion of his record will course for the legal questions of our Department of Justice’s Office of Legal only further discourage, not encourage, children’s and grandchildren’s genera- Counsel, and the U.S. attorney for New future nominees who have lengthy tions. Jersey. After his first 15 years of public records of public service and judicial These are core questions: What is the service, he then went on to serve as a experience. This is troubling, and I scope of presidential power under the judge on the Third Circuit, for which hope that the previous few months are

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00043 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.032 S30JAPT1 ycherry on PROD1PC64 with SENATE S302 CONGRESSIONAL RECORD — SENATE January 30, 2006 not more evidence of a trend towards Justices will approach their case with more than 4,800 cases and has written partisanship at all costs. Whether some a willingness to fully and fairly con- more than 350 opinions. His record on may like it or not, President Bush was sider both sides. the bench is one of steady, cautious, elected by the American people. His The cases that come before the Su- and disciplined decisionmaking. He is nominees therefore deserve fair and preme Court each year present legal careful to limit the reach of his deci- dignified consideration by the Senate, issues of tremendous complexity and sions to the particular issues and facts even by those who opposed the Presi- import, and Justices should not be before him, and he avoids inflam- dent’s election or his views on certain asked to speculate as to how they matory or politically charged rhetoric. issues. would vote, or make promises in order And despite this extensive record, Perhaps these past few months to win confirmation. Justice Ginsberg there is no evidence that his decisions should not have been a surprise to peo- stated during her hearing that a nomi- are results-oriented. For example, in ple like me who believe that the Sen- nee may provide ‘‘no hints, no fore- the area of reproductive rights, I note ate should not let politics or ideology casts, no previews’’ on issues likely to that he has reached decisions favoring stand in the way of qualified nominees. come before the Court. As Justice competing sides of the political debate. After all, maybe all of this was fore- Ginsberg’s statement underscores, the After reviewing Judge Alito’s dis- seen by the Founding Fathers when Justices should reach a conclusion only senting opinions, Cass Sunstein, a well- they established the nomination proc- after extensive briefing, argument, re- known liberal law professor from the ess in article II, section 2 of the Con- search, and discussion with their col- University of Chicago, reached the fol- stitution and gave the Senate only a leagues on the Court. lowing conclusion: ‘‘None of Alito’s limited advice and consent role. As Ed- We must also recognize that there opinions is reckless or irresponsible or mund Randolph noted, ‘‘Appointments are limits to our ability to anticipate even especially far-reaching. His dis- by the Legislatures have generally re- the issues that will face the Court in agreement is unfailingly respectful. sulted from cabal, from personal re- the future. Twenty years ago, few His dissents are lawyerly rather than gard, or some other consideration than would have expected that the Court bombastic. . . . Alito does not place po- a title derived from the proper quali- would hear cases related to a Presi- litical ideology in the forefront.’’ fications.’’ Looking at how some of my dential election challenge, would try to During his hearing, the committee colleagues have approached the nomi- make sense of copyright laws in an heard the testimony of seven judges nation of Judge Alito, I believe that electronic age, or would face constitu- from the U.S. Court of Appeals for the Mr. Randolph, sadly, may have been tional issues related to the war on ter- Third Circuit, the court on which right when he said this more than 200 rorism. Judge Alito currently serves. The panel years ago. While we cannot know with certainty was comprised of current and retired Fortunately, there are a greater how a nominee will rule on the future judges, appointed by both Democratic number of colleagues here in the Sen- cases that will come before him or her, and Republican Presidents, and holding ate who do view the issue of judicial we are not without information on views ranging across the political spec- nominations as being about qualifica- which to base our judgement. We must trum. engage in a rigorous assessment of the tions, not politics. They include the Who better to know how Judge Alito nominee’s legal qualifications, integ- majority leader and the chairman of thinks, reasons, and approaches the rity, and judicial temperament, as well the Judiciary Committee, who have law, than those with whom he worked as the principles that will guide the both done a commendable job of mov- so closely over the past 15 years? And nominee’s decisionmaking. In fact, in ing this nomination forward and giving it is significant that these colleagues Judge Alito’s case, I note that we have us the opportunity to have an up-or- were unanimous in their praise of significantly more information on down vote. I congratulate them on Judge Alito—in his legal skills, his in- which to base our judgement than with their efforts and look forward to cast- tegrity, his evenhandedness, and his other nominees, given his long tenure ing my vote in support of Judge Alito. dedication to precedent and the rule of as a judge on the Third Circuit Court of He certainly deserves it, as well as the law. support of the rest of the Senate. Appeals. Ms. COLLINS. Mr. President, I rise The excellence of Judge Alito’s legal As Judge Becker commented, ‘‘The today to speak in favor of the nomina- qualifications is beyond question. Even Sam Alito that I have sat with for 15 tion of Samuel Alito to serve as Asso- his fiercest critics acknowledge that he years is not an ideologue. He’s not a ciate Justice of the Supreme Court. is an extraordinary jurist with an im- movement person. He’s a real judge de- The Supreme Court is entrusted with pressive knowledge of the law, a con- ciding each case on the facts and the an enormous power—the power to in- clusion also reached by the American law, not on his personal views, what- terpret the Constitution, to say what Bar Association, ABA. ever they may be. He scrupulously ad- the law is, to guard one branch against The ABA Standing Committee on the heres to precedent. I have never seen the encroachments of another, and to Judiciary conducted an exhaustive re- him exhibit a bias against any class of defend our most sacred rights and lib- view of his qualifications. During this litigation or litigants.’’ erties. process, the Committee contacted 2,000 Judge Aldisert, who was appointed by The decision of whether to confirm a individuals throughout the Nation, President Johnson, had this to say: nominee to the Supreme Court is a sol- conducted more than 300 interviews ‘‘The great Cardozo taught us long ago emn responsibility of the Senate and with Federal judges, State judges, col- the judge, even when he is free, is not one that I approach with the utmost leagues, cocounsel, and opposing coun- wholly free. He is not free to innovate care. It is a duty that we must perform sel, and formed reading groups to re- at pleasure. This means that the cru- despite the fact that nominees are con- view his published opinions, unpub- cial values of predictability, reliance strained in the information they can lished opinions, and other materials. and fundamental fairness must be hon- provide us. Based on its review, the committee ored. . . . And as his judicial record Some interest groups, and even some found Judge Alito’s integrity, his pro- makes plain, Judge Alito has taken of my colleagues, have called on nomi- fessional competence, and his judicial this teaching to heart.’’ nees to promise to vote a certain way; temperament to be of the highest Judge Lewis, a committed human they demand allegiance to a particular standard, and decided unanimously to rights and civil rights activist who de- view of the law or a guarantee in the rate him ‘‘well qualified’’—the highest scribed himself as ‘‘openly and outcome of cases involving high-profile possible rating. unapologetic pro-choice,’’ said: ‘‘I can- issues. These efforts are misguided. When asked at his hearing what type not recall one instance during con- To avoid prejudging and to ensure of Justice he would be, Judge Alito di- ference or during any other experience impartiality, a nominee should not dis- rected Senators to his record as a judge that I had with Judge Alito . . . when cuss issues in areas of the law that are on the Third Circuit. I agree this is the he exhibited anything remotely resem- ‘‘live’’—where cases are likely to come appropriate focus. bling an ideological bent. . . . If I be- before the Court. Parties before the During his 15 years of service on the lieved that Sam Alito might be hostile Court have a right to expect that the Third Circuit, Judge Alito has voted in to civil rights as a member of the

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Apparently Sheridan was fre- abiding commitment to the rule of law, Yet, in 1992, all three of these Jus- quently late to work, and other em- the limited role of a judge, and the ob- tices joined together to write the joint ployees had complained about food and ligation to decide the case based on the opinion in Casey reaffirming Roe based drinks she gave away. In February 1991, facts and the record before him. They on the ‘‘precedential force’’ of its cen- the hotel decided to reassign Sheridan also testified that Judge Alito’s deci- tral holding. to a nonsupervisory position that did sions have been constrained by estab- Based on my review of his past deci- not involve the handling of cash. She lished legal rules and specifically by a sions, I doubt that I will agree with would not suffer any reduction in pay respect for the rules of precedent. The every decision Judge Alito reaches on because of this job transfer. Rather weight of their testimony is substan- the Court, just as I do not agree with than accept reassignment, Sheridan re- tial—they know far more about Judge all of his previous decisions. I antici- signed in April 1992 and sued for gender Alito’s judicial philosophy than we pate, however, that his legal analysis discrimination. could hope to learn in a few days of will be sound, and that his decision- When the case came before him on public hearings. making will be limited by the principle appeal, Judge Alito joined a unanimous A nominee’s judicial philosophy mat- of stare decisis and the particulars of three-judge panel that ruled for Ms. ters to me. When I met with Judge the case before him. Sheridan. He held that her case should Alito, I specifically asked him about Judge Alito has demonstrated his fit- go to trial because it was plausible his views on the importance of prece- ness for this appointment with his that a jury could agree with her. Judge dent and stare decisis—the principle clear dedication to the rule of law. Alito explained, ‘‘a rational trier of that courts should adhere to the law After an exhaustive review process, the fact could have found that duPont’s set forth in previously decided cases. ABA has given him its highest possible proffered reasons for the constructive During both our meeting and his rating. His colleagues on the Third Cir- termination were pretextual.’’ hearing, Judge Alito evidenced a cuit, both Republican and Democrat Later, however, the case was heard strong commitment to the principle of appointees alike, have been unqualified by the full Third Circuit. At that time, stare decisis. Judge Alito acknowl- in their praise of his nomination. Judge Alito expressed doubt about the edged the importance of this principle Based on the record before me, I be- applicable Third Circuit precedent. to reliance, stability, and settled ex- lieve that Judge Alito will be a Justice Hesitant about the court’s broad rule pectations in the law. who will exercise his judicial duties that affected all cases with varying At his hearing, Judge Alito, referring guided not by personal views, but based factual situations, he explained that to the landmark Roe v. Wade decision, on what the facts, the law, and the when the employee makes out a case testified as follows: ‘‘[I]t is a precedent Constitution command. like this, she should usually, but not that is protected, entitled to respect For these reasons, I will vote to con- always, be accorded a trial. He reached under the doctrine of stare decisis. firm Judge Alito. I hope and expect this conclusion after parsing the Su- ...’’ that he will prove his critics wrong and preme Court’s 1993 decision in St. Similarly, Chief Justice Roberts, who that his record on the Supreme Court Mary’s Honor Center v. Hicks. And was confirmed with a strong bipartisan will show the same deference to prece- most importantly for present purposes, support, made a nearly identical state- dent, respect for the limited role of a the Supreme Court later agreed with ment at his hearing. He said that Roe judge, and freedom from ideologically Judge Alito’s view in a unanimous is ‘‘a precedent of the court, entitled to driven decisionmaking that he has opinion authored by Justice O’Connor. respect under the principles of stare de- demonstrated during his tenure on the That case, Reeves v. Sanderson Plumb- cisis.’’ Third Circuit. ing Products, can be found at 533 U.S. After a careful comparison of these Mr. KYL. Mr. President, I explained 133, and was decided by the Supreme statements and others, I find that on last Wednesday that I would support Court in 2000. substance, there is little that distin- the nomination of Judge Alito. Since The job of an appellate court judge is guishes the two nominees’ statements then, I have been somewhat frustrated to faithfully interpret the Constitution on this issue. Both nominees clearly at how this Senate debate has pro- and the Supreme Court’s interpreta- acknowledged the importance of prece- gressed. Time and time again, some tions of statutes. The history of this dent, the value of stare decisis, and the Senators have mischaracterized the case demonstrates that Judge Alito got factors involved in analyzing whether a cases and record of Judge Alito. I it right when he examined pleading prior holding should be revisited. Both would like to take a few minutes and standards in title VII cases. agreed that the Constitution protects walk through just a few of those Let’s move on to another case, the the right to privacy, and that the anal- misstatements. 1996 case of U.S. v. Rybar, in which ysis of future cases involving reproduc- First, let me address the case of Judge Alito dissented. tive rights begins not with Roe but Sheridan v. DuPont. On January 25, the Senior Senator with the Casey decision, which re- On January 26, the junior Senator from Rhode Island said that Judge affirmed Roe’s central holding. And from Colorado indicated that Judge Alito ‘‘advocated striking down both testified that when a case has Alito was unlikely to support prin- Congress’s ban on the transfer and pos- been reaffirmed multiple times, as Roe ciples of diversity because he ruled session of machine guns.’’ He further has, this increases its precedential against a female plaintiff in a gender said that Judge Alito had argued that value. discrimination case. The Senator said, he was ‘‘not convinced by Congress’ Despite the strong testimony of both ‘‘In Sheridan, Judge Alito registered findings on the impact of machine guns Chief Justice Roberts and Judge Alito, the lone dissent among thirteen judges on interstate commerce. He sub- the reality is that no one can know for voting to prevent a woman who had stituted his own policy preferences in a certain how a Justice will rule in the presented evidence of employment gen- way that the Third Circuit majority future. History has shown us that der discrimination from going to found was, in their words, counter to many predictions about how other Jus- trial.’’ The Senator’s summary of the the difference that the owes to its two tices would decide cases have proven case requires additional elaboration, coordinate branches of government.’’ wrong. though. I discussed this case with Judge Alito At her hearing in 1981, Justice O’Con- According to the record of that case, during his confirmation hearings. The nor vigorously defended her belief that the plaintiff, Barbara Sheridan, was description we have just heard does not abortion was wrong and stated that she employed as head captain of the Green tell the whole story. found it ‘‘offensive’’ and ‘‘repugnant.’’ Room restaurant in the Hotel DuPont. Judge Alito’s dissent in that case had Justice Souter once filed a brief as a Initially, she received good perform- nothing to do with being ‘‘convinced’’ State attorney general opposing the ance reviews, but DuPont claimed that by Congress’s findings. Rather, Judge

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While it is true that the refused to accept the arguably demean- not transfer or commercial activity. criminal defendant relied heavily on ing stereotype which the plaintiff’s Second, the dissent had nothing to do the anemic evidence that in three pre- lawyer advanced, which was ‘‘that re- with Judge Alito’s own policy pref- vious trials no African Americans tarded persons are any more (or less) erences regarding the possession of ma- ended up on the jury, it is also the case sensitive to harassment than anyone chine guns. Rather, it was a careful ap- that the prosecutor had struck both else.’’ Judge Alito required evidence on plication of the then-recent decision in Blacks and Whites from those juries. which to base his ruling and refused to United States v. Lopez, which re- Indeed, Judge Alito pointed out in his rely on the proposed stereotype. minded courts to take seriously the decision that, of the excluded jurors in Let’s move on to another case, that limits of Congress’s powers under the the previous trials, only 24 percent of Doe v. Groody. commerce clause. In Lopez, the Su- were African Americans. He suggested This case was mentioned by several preme Court had held that Congress’s that this might not even be dispropor- Senators but in particular by the Jun- power to regulate commerce among the tionately high in a county where the ior Senator from Massachusetts on several States did not include the most recent census indicated that 18 January 25. The Senator said that power to regulate possession of a gun percent of the population was Black. Judge Alito did not support individual near a school where the gun never Most importantly, Judge Alito’s rights because he dissented in Doe v. crossed State lines. It was for the opinion rejected the selective use of Groody. He said, ‘‘Judge Alito’s hos- Third Circuit to decide whether statistics based upon the sample size of tility to individual rights isn’t limited Congress’s power to regulate interstate three trials. In so ruling, Judge Alito to civil rights. He consistently excuses commerce included the power to regu- was in agreement with multiple State government intrusions into personal late possession of a machine gun where and Federal judges who had heard the privacy, regardless of how egregious or the machine gun never crossed State case before him. On the full Third Cir- excessive they are. In Doe v. Groody,’’ lines. In Judge Alito’s view, the Su- cuit, four other judges, half of them the Senator from Massachusetts ar- preme Court’s decision ‘‘require[d] [the Democratic appointees, joined in his gued, ‘‘dissented from an opinion writ- court] to invalidate the statutory pro- opinion on this point. Not a single ten by then-Judge Michael Chertoff be- vision at issue.’’ He relied on and cited judge thought the statistical argument cause he believed that the strip search Lopez at least 22 times in his 9-page settled the case. of a ten year-old was reasonable.’’ As a postscript, when Riley was given dissenting opinion. First, let’s get the legal question Again, this is the job of an appeals a new trial by the Third Circuit, he was straight. The issue in Doe v. Groody court judge: to interpret Supreme again convicted of all charges. When he was whether police officers should be Court precedent and apply it to new again appealed, the Delaware Supreme able to be personally sued for money cases. Court found that his petition was damages when they misunderstand the I should also point out that Judge ‘‘wholly without merit.’’ scope of the search warrant they were Alito’s dissenting opinion provided a Let me turn to another case, one also given. virtual roadmap for how Congress discussed by the senior Senator from could regulate the possession of guns in Illinois, but during his January 25 floor Second, let’s look at what happened a way consistent with the Constitution speech, that of Pirolli v. World Flavors. during the event in question. On March and Supreme Court case law. This is The Senator from Illinois stated: 6, 1998, as a result of a long-term inves- hardly the behavior of someone bent on ‘‘Another case involved an individual tigation of a John Doe for suspected imposing a ‘‘policy preference’’ against who was the subject of harassment in narcotics dealing, officers of the regulating machine guns. According to the work place. This person had been Schuylkill County Drug Task Force Judge Alito, all Congress had to do was assaulted by fellow employees. He was sought a search warrant for Doe and make findings as to the link between a mentally retarded individual.’’ The his residence. The typed affidavit in the possession of firearms and inter- Senator continued, ‘‘His case was dis- support of the warrant stated, among state commerce or add a requirement missed by a trial court, and it came be- other things, that a reliable confiden- that the government prove that the fore Judge Alito to decide whether or tial informant had purchased meth- firearm moved across State lines. not to give him a chance to take his amphetamine on several occasions Let me add one last word on the case to a jury. And Judge Alito said no. from John Doe at his residence. The af- Rybar case. It is often said that Judge The man should not have a day in fidavit sought permission to ‘‘search Alito always sides with the govern- court.’’ all occupants of the residence and their ment. Well, this case was called Several corrections are needed here. belongings.’’ ‘‘United States versus Rybar,’’ and First, the plaintiff in this case did However, the printed sheet entitled Judge Alito was on the side of Mr. have his day in court; he just did not ‘‘Search Warrant and Affidavit’’ con- Rybar. Of course, he did not think of reach a jury. During the course of the tained an entry naming only John Doe himself being on anyone’s side. He was proceedings, the plaintiff presented his under the question, ‘‘specific descrip- just doing as he believed the Constitu- argument to not one, but four judges— tion of premises and/or persons to be tion and Supreme Court required. And one district court judge and three ap- searched.’’ When the officers entered he would have felt the same way if the pellate court judges. The rules of the the house to commence the search, law required the opposite conclusion. Third Circuit require that a plaintiff they decided to search Jane Doe and Let us now move on to another case, present his case in a minimally ade- her daughter, Mary, age 10, for contra- that of Riley v. Taylor. quate fashion in order to be considered. band. A female officer removed both Speaking at the executive business The plaintiff must, at a minimum, Jane and Mary Doe to an upstairs bath- meeting for the nomination of Judge state what happened to him and pro- room where she searched them for Alito, the senior Senator from Illinois vide the basis for his claim. But the drugs. No contraband was found. Once left a misimpression of the facts of this plaintiff in this case, a man who had a the search was completed, both mother case, so I would like to clear up any lawyer, never did that. The Third Cir- and daughter returned to the ground confusion. cuit judges in this case were not pro- floor to await the end of the search. In that case, Judge Alito found there vided with enough facts to make an As a matter of policy, the sad reality was insufficient evidence to support a adequate and informed decision. Judge is that drug dealers often hide weapons criminal defendant’s claim that the Alito emphasized, ‘‘I would overlook and drugs on children in the home. prosecutor had violated his constitu- many technical violations of the Fed- Judge Alito acknowledged in his opin- tional rights by striking three minori- eral Rules of Appellate Procedure and ion that he found the fact that the

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00046 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.053 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S305 search occurred to be unfortunate. Ac- the case of United States v. Igbonwa. In fact, Judge Alito’s record confirms cordingly, police officers sometimes re- There, a criminal defendant argued that he is not an ideologue on a cru- quest warrants that allow them to that the prosecutor had failed to honor sade to curtail Roe v. Wade. In his 15 search all persons found during a drug his plea agreement. The majority of years on the bench, he has confronted bust. the court voted against the defendant seven restrictions on abortion, and he The Does sued the police officers per- and in favor of the prosecutor. Clearly, struck down all but one. Judge Alito sonally for money damages. The issue Judge Alito had legal grounds to do the has upheld a woman’s right to choose was how to read the warrant in light of same. Instead, Judge Alito issued a even when he had the discretion to the affidavit. And the legal question lone dissent arguing that the pros- limit abortion rights. question was whether a reasonable offi- ecutor was required to fulfill this For example, in the 1995 case of Eliz- cer could have believed that the search promise to the defendant. abeth Blackwell Health Center for warrant allowed the officers to search In yet another example, in Crews v. Women v. Knoll, Judge Alito struck everyone in the house. Two judges on Horn, Judge Alito ruled that a prisoner down two abortion restrictions by the the panel said no, while Judge Alito was entitled to more time to bring his State of Pennsylvania. The first pro- said yes. habeas petition. Again, the Supreme vided that a woman who became preg- Why did Judge Alito believe that the Court and Third Circuit had never de- nant due to rape or incest could not ob- police officers should not be liable per- cided the question, and the statute was tain Medicaid funding for her abortion sonally? He concluded that a reason- unclear. Judge Alito could have ruled unless she reported the crime to the able police officer could think that the either way, yet he ruled in favor of the police. The second provided that if a warrant should be read in conjunction prisoner’s claim. woman needed an abortion to save her with the attached affidavit. Judge This is a good time to remind the life, she had to obtain a second opinion Alito reasoned that a ‘‘commonsense Senate what Third Circuit Judge Ed- from a doctor who had no financial in- and realistic’’ reading of the warrant ward Becker, who served with Judge terest in the abortion. The question authorized a search of all occupants of Alito for 15 years, had to say on this was whether these laws conflicted with the premises. Judge Alito found that point. He testified, ‘‘The Sam Alito a Federal regulation issued by the Sec- the officers in this case ‘‘did not ex- that I have sat with for 15 years is not retary of Health and Human Services. hibit incompetence or a willingness to an ideologue. He’s not a movement per- There was no binding Supreme Court flout the law. Instead, they reasonably son. He’s a real judge deciding each precedent on point, and Judge Alito concluded that the magistrate had au- case on the facts and the law, not on easily could have upheld the abortion thorized a search of all occupants of his personal views, whatever they may restrictions if he had such a preset the premises.’’ be. He scrupulously adheres to prece- agenda. But Judge Alito voted to dent. I have never seen him exhibit a So, on the law, Judge Alito did not, strike down both laws in favor of a bias against any class of litigation or as he has been accused repeatedly over woman’s right to choose. This is not litigants.’’ As Judge Becker summa- the past few days, authorize the strip- the behavior of someone bent on chip- rized Judge Alito’s career, ‘‘His credo search of a 10-year-old girl. He just ping away at Roe v. Wade. This is the tried to sort out a practical, on-the- has always been fairness.’’ Mr. President, I want to turn to some behavior of a jurist who understands ground problem for law enforcement. It of the mischaracterizations of Judge the importance of precedent. is sad but predictable that this case, The junior Senator from New Jersey Alito’s past record as a government of- with its inflammatory facts, would came to the floor earlier today and ficial. come up repeatedly, but repetition is In her January 25 speech, the junior criticized the work Judge Alito had not going to change the record of what Senator from New York said that done on behalf of the Reagan Justice happened. Judge Alito had written that ‘‘in his Department on abortion cases. He sug- Mr. President, let’s move on. estimation it is not the role of the fed- gested that those efforts showed a bias I want to address a claim by the jun- eral government to protect the health, against Roe v. Wade that would matter ior Senator from Illinois in a January safety, and welfare of the American in the future. But the record shows just 26 speech that, whenever Judge Alito people.’’ the opposite, as discussed above. How has discretion, he will rule against an As best I can tell, the Senator is re- else to explain the Knoll case? More- employee or a criminal defendant. To ferring to a 1986 document addressing over, the Senator said that Judge Alito quote, the Senator said, ‘‘If there’s a the Truth in Mileage Act, a bill to re- would not describe Roe v. Wade as, case involving an employer and em- quire States to change their auto- quote, ‘‘settled law.’’ Judge Alito ad- ployee and the Supreme Court has not mobile registration forms to include dressed this question repeatedly during given clear direction, Judge Alito will the mileage of the car every time it the hearing. A judge cannot call an rule in favor of the employer. If there’s was sold. That document did not, as area of law ‘‘settled’’ when it is likely a claim between prosecutors and de- the Senator said, offer Alito’s ‘‘esti- that cases dealing with that area will fendants if the Supreme Court has not mation’’ on anything. Judge Alito was come before him. This demand to say provided a clear role of decision, then drafting a veto message for President that Roe is settled is little more than he’ll rule in favor of the state.’’ Reagan. Accordingly, he drafted that a desire to prejudge all those cases, in- This just is not the case. There are message in President Reagan’s voice cluding cases pending before the Su- 4,800 cases that could be reviewed to and restated President Reagan’s policy preme Court today. Judge Alito simply demonstrate the inaccuracy of that on federalism. The first-person pronoun cannot do that without violating his claim, but let’s just look at a few. in that message is President Reagan, judicial ethics and depriving those liti- In Zubi v. AT&T, an employee not Alito. gants of their fair day in court. claimed that AT&T had fired him based It is also worth nothing that Judge I will move on. on his race, but the record was far from Alito did not challenge Congress’s pow- Earlier today, the junior Senator clear. Judge Alito clearly had room to ers. His cover memo acknowledged that from Michigan said that Judge Alito rule against the employee. After all, ‘‘Congress may have the authority to had ‘‘been criticized by his colleagues the other two judges deciding the case pass such legislation.’’ He did point out for trying to legislate from the bench on appeal did so and threw out the em- that the legislation was ‘‘in large part in order to reach the result that he de- ployee’s claim. They held that the em- unnecessary since only five states and sires.’’ I am not aware of a single ex- ployee had waited too long to bring his the District of Columbia do not already ample of any member of the Third Cir- claim. In contrast, Judge Alito issued a have’’ title forms that meet this re- cuit, or of any other court in the Na- lone dissent arguing that the employee quirement. tion, claiming that Judge Alito had was entitled to bring his discrimina- Let’s move to another statement any tendency toward quote, ‘‘legis- tion claim. Later, the Supreme Court from the Senator from New York. She lating from the bench.’’ unanimously vindicated Judge Alito’s stated that Judge Alito’s ‘‘time on the In fact, just the opposite is true. It is view. bench shows an unapologetic effort to especially surprising to hear such a As another example to counter the undermine the right to privacy and a claim given the testimony of Judge Senator from Illinois’s claim, consider woman’s right to choose.’’ Alito’s colleagues on the Third Circuit.

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00047 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.054 S30JAPT1 ycherry on PROD1PC64 with SENATE S306 CONGRESSIONAL RECORD — SENATE January 30, 2006 Would seven current and former Third U.S. Attorney, his academic record, judges were uniform in their assess- Circuit judges testify for Judge Alito if and I found him to be eminently well ment that Judge Alito has no agenda they believed he was a judicial activist qualified. and has an open mind. These are jurists or otherwise unqualified for the bench? The objections which have been who know his work well, jurists who go Those listening now or reading the raised to the nomination turn on those with him after oral arguments into a CONGRESSIONAL RECORD in future years who think he should have been more closed room—no clerks, no secretaries, should go to the Judiciary Committee specific on answering certain ques- no recording—they see how he thinks records on the Internet and read what tions. But to have been more specific, and how he considers cases. those judges had to say when they tes- he would have had to in effect state I think two judges were especially tified on January 12. When I spoke last how he would rule on cases to come be- significant. The first was Judge Ed- week, I entered in the RECORD a series fore the Court, and that is going too ward R. Becker, the winner of the of excerpts from that testimony that far. He went about as far as he could Devitt Award as the outstanding Fed- the Senate Republican Policy Com- go. eral jurist a couple of years ago. Judge mittee, which I chair, had compiled. With the critical question of women’s Becker has sat with Judge Alito on The complete testimony is worth re- right to choose, his testimony was vir- more than 1,000 cases. He is well known viewing, too. Again, I am not aware of tually identical to Chief Justice Rob- as a centrist and is a highly respected a single time that any judge has ac- erts, and he affirmed the basic prin- judge. He testified that Judge Alito cused Judge Alito of legislating from ciples of stare decisis, a Latin phrase and he had disagreed on a very small the bench. which means ‘‘let the decision stand.’’ number of cases, about 25. The second As one last point, I must address this He is not an originalist. He charac- was Judge Timothy Lewis, an African unitary executive issue. The senior terized the Constitution as a living American who identifies himself as Senator from New Jersey and others document, as Cardozo did, reflecting being very strongly pro-choice, very have said that Judge Alito somehow the values of our country, the impor- strong for civil rights. He was seated believes in making the executive more tance of the reliance on precedent, and on the left-hand side of the panel—he powerful than the legislative and judi- articulated those views. He also indi- made a reference to that reflecting his cial branches. One wonders how many cated that he had an open mind on the position on the philosophical spec- times this misstatement has to be cor- issue of a woman’s right to choose, not- trum—and testified very strongly on rected. Judge Alito made clear during withstanding what he had done in an Judge Alito’s behalf, saying that if he his testimony that his past comments advocacy role for the Department of did not have every confidence in Judge regarding the unitary executive theory Justice, notwithstanding any views he Alito he would not have appeared as a only—only, Mr. President—dealt with had expressed at an earlier date. witness in the proceeding. The prepared statement which I filed who has the power to control executive When it came to the critical question in the record last week details a great agencies. As he said repeatedly, insofar of Executive power, as to how he would many cases where Judge Alito has de- as this theory deals with the scope of handle cases, he subscribed to Justice cided in favor of the so-called little Presidential power, he does not—re- Jackson’s concurrence in the steel sei- guy. peat, does not—subscribe to it. What zure cases, which is the accepted model. And here again, he went about In the context of the hundreds of de- else can he say? He has made this ex- cisions that Judge Alito has written tremely clear. He has said it repeat- as far as he could go in discussing the considerations and the factors which and the thousands of cases where he edly. has sat, you could pick out a few and would guide his decisions. Mr. President, there have been other put him with any position on the philo- misstatements and mischaracter- When it came to Executive power, again he discussed the considerations sophical spectrum of the court. izations of Judge Alito’s record. I can Candidly, it is a heavy responsibility which would guide him on his decisions only respond to so many. I will simply to cast a vote on a Supreme Court but necessarily stopped short of how he encourage future students of this de- nominee, especially one who is taking would decide a specific case. bate to look at the cases in question, the place of Justice O’Connor, a swing He disagreed with the Supreme Court and to carefully review the Committee vote. But when we look at the tradi- of the United States, which has de- record, before reaching conclusions tional standard as to intellect, this clared acts of Congress unconstitu- based on floor debate. man is an A plus. When we look at the tional because of our method of rea- I look forward to Samuel Alito serv- traditional standard of character, soning, saying that our method of rea- ing on the Supreme Court for many again he is an A plus. When you look at soning somehow was defective com- years to come. the standard of experience and public The PRESIDING OFFICER. Under pared to the Court’s method of rea- service, he is an A plus. When you look the previous order, the majority leader soning. Judge Alito rejected that. at his analytical style as a jurist, again Perhaps most importantly in evalu- or his designee will be recognized for he is an A plus. the final 15 minutes prior to the vote ating the prospects as to how Judge Some have objected to nominees be- on the motion to invoke cloture. Alito will rule, we have to bear in mind cause, as some have put it, there is no Mr. KENNEDY. Mr. President, I sug- that history shows the rule to be that guarantee. Guarantees are for used gest the absence of a quorum. there isn’t a rule. Justice Sandra Day cars and washing machines, not for Su- The PRESIDING OFFICER. The O’Connor, Justice Anthony Kennedy, preme Court nominees. clerk will call the roll. Justice David Souter before coming to I believe Judge Alito is well qualified The assistant legislative clerk pro- Court all expressed their sharp dis- to receive an affirmative vote by the ceeded to call the roll. agreement with abortion rights; once Senate and be confirmed as an Asso- Mr. SPECTER. Mr. President, I ask they got to the Court they have upheld ciate Justice of the Supreme Court. unanimous consent that the order for a woman’s right to choose. Then there I note the distinguished majority the quorum call be dispensed with. is the classic case of President Tru- leader on the floor. The time left be- The PRESIDING OFFICER. Without man’s nominees on the big Youngstown fore the cloture vote—almost a full objection, it is so ordered. case on steel seizure, voting contrary minute—I yield to Senator FRIST. Mr. SPECTER. Mr. President, I urge to what the President, their nomi- The PRESIDING OFFICER. The ma- my colleagues to invoke cloture on the nator, had expected. jority leader is recognized. nomination of Judge Alito to the Su- We heard enormously powerful testi- Mr. FRIST. Mr. President, I will be preme Court and to support him on the mony coming from seven circuit using some leader time. For my col- final vote. judges, some past, some senior, and leagues, the vote will be in about 10 As the chairman of the Judiciary some currently active who have minutes or so. Committee, I sat through every minute worked with Judge Alito. There were In a few moments the Senate will de- of the proceedings, reviewed in advance precedents for other judges coming for- cide whether to invoke cloture to close some 250 cases of Judge Alito’s, his ward to testify on behalf of a nomi- debate on the nomination of Sam Alito work in the Justice Department, his nee—but not quite in this number, not to be the 110th Associate Justice of the work as U.S. Attorney, as Assistant quite in this magnitude. The seven Supreme Court.

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00048 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.055 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S307 Before we vote, I want to take a had been previously filibustered, or the Senate to file cloture which we will minute to reflect just a bit on the blocked, obstructed in the last Con- be voting on. Certainly, it is any Sen- progress that we have made in this gress—and we were told at the time ator’s right to force this vote, but it overall judicial confirmation process would be blocked in this Congress—got sets an unwelcome precedent for the over the last 12 months. fair up-or-down votes and were con- Senate. In the Senate, I really wear three firmed and now sit on our circuit As a reminder to my colleagues, the hats. One is the Senator from the great courts. A new Chief Justice of the Senate did not have a cloture vote on State of Tennessee; second, the Repub- United States, Chief Justice Roberts, any of the nine Justices currently sit- lican leader; and third, majority lead- now sits at the helm of the High Court. ting on the Supreme Court. Judge er. Wearing the third hat as majority If we had not led on principle, there Alito has majority support. A bipar- leader, I have become a steward of our would have been no Gang of 14. Filibus- tisan majority of Senators stands institution, steward in the sense of its ters would have become even more rou- ready to confirm him and have an- rules and its precedents, its practices tine and led to more obstruction. How- nounced their support. Judge Alito de- and the customs of this Senate. ever, the sword of the filibuster has serves to be Justice Alito. He has the My job is to bring Senators together, been sheathed because we are placing professional qualifications, the judge both sides of the aisle, to govern. That principle before politics, results before temperament and integrity our highest is why we are here, to govern with rhetoric. Court deserves. meaningful solutions to people’s real With the nomination of Sam Alito Whether Members agree with me, problems, problems today, problems in before the Senate, this Senate must whether Members support him, we the future, to identify what those prob- again choose principle or partisanship. should not prevent Judge Alito from lems are and then to resolve them and Should we choose to lead on the prin- getting a vote. I urge my colleagues to to secure America’s future by honoring ciple that judicial nominees, whether join me in voting for cloture. It is our its past and by building on a record of nominated by a Republican or a Demo- constitutional obligation of advise and accomplishment every day as we move crat, deserve an up-or-down vote, or consent, because it is fair and because forward. should we revert to the partisan ob- it is the right thing to do. Three years ago, when I assumed this structionism of the past? I believe a bi- Senators stand for election; judges position as majority leader, there was partisan group of Senators will choose should not. Absent some extraordinary probably no single greater challenge or today to put principle first. evidence, we should not challenge a obstacle than the judicial confirmation Last week, the distinguished minor- nominee’s personal character, credi- process. In a word, it was broken. The ity leader said there has been adequate bility, or integrity. Continuing down minority party had decided to put par- time for people to debate. No one can this path could deter qualified men and tisanship first in the judicial confirma- complain in this matter that there has women from putting their names for- tion process by, at that time, orches- not been sufficient time to talk about ward for nomination, from volun- trating regular, almost routine filibus- Judge Alito, pro or con. I could not teering to serve their country as Fed- ters to block what we all know were agree more with my colleague and eral judges. It could threaten the qual- highly qualified nominees from getting friend. It is time to end debate. It is ity Americans most desire in their ju- fair up-or-down votes. This partisan ob- time to move on. Since President Bush diciary: fairness and independence. structionism began in 2001, it contin- announced Judge Alito’s nomination A vote today for cloture is a vote to ued into 2002, in 2003, and then 2004. on October 31, Senators have had 91 support all we have done over the past If we look back to the 108th Congress days to review his nomination, to re- 3 years to repair what was broken. alone, the Senate voted 20 times to end view his records, his writings. True, it is a vote to bring Sam Alito’s debate on 10 different nominees. Each To put that in perspective, Chief Jus- nomination to a fair up-or-down vote, time, cloture failed. We spent more tice John Roberts’ confirmation took but it is also a vote that is so much time debating judicial nominations 72 days, even including an extra week’s more. It is a vote to demonstrate Mem- during those 2 years than in any pre- delay to pay respects to his prede- bers working together to end partisan vious Congress. This partisan obstruc- cessor, Chief Justice Rehnquist. Jus- obstructionism and to lead on that tionism was unprecedented. This rou- tice O’Connor, who Judge Alito will re- simple principle that every judicial tine use of the filibuster was wrong. place, was confirmed in 76 days. Presi- nominee, with majority support, de- Never in 214 years had a minority de- dent Clinton’s two Supreme Court serves a fair up-or-down vote. nied a nominee with majority support nominees, Justices Ginsburg and In closing, if I may borrow the words that fair up-or-down vote. The minor- Breyer, got a fair up-or-down vote in of my good friend Senator KENNEDY ity had used the filibuster to seize con- an average of 62 days. Judge Alito from 1998: trol of the appointments process. They today is at 91 days. We owe it to Americans across the country used it unfairly to apply a new polit- During this 3-month period since to give these nominees a vote. If our [col- ical standard to judicial nominees and Judge Alito was nominated, Members leagues] don’t like them, vote against them. to deny a vote to any nominee who did have had an abundance of his written But give them a vote. not subscribe to a liberal, activist, ide- materials, documents, and opinions to I agree with Senator KENNEDY’s ological agenda. review. They have had over 4,800 opin- statement. I say to my colleagues, if To justify this unprecedented ob- ions from his tenure on the Third Cir- you do not like Judge Alito, vote struction, Democratic leaders unfairly cuit Court of Appeals spanning 27,000 against him. That is your right. But attacked the character of these nomi- pages; another 1,000 pages of documents let’s give him a vote. That is our con- nees. They sought to paint them as ex- from Judge Alito’s service at the De- stitutional duty. tremists and radicals and threats to partment of Justice; numerous speech- The PRESIDING OFFICER. The our society and our institutions. But es and news articles. The list goes on Democratic leader. the American people saw through the and on. Mr. REID. Mr. President, I will use attacks. They saw them for what they Members have had 30 hours of testi- leader time. were, purely partisan. mony from Judge Alito’s judicial com- I want the record spread with the Finally, early this year the Repub- mittee hearings; statements of 33 wit- fact that Senator ENSIGN will miss the lican leadership said: Enough is nesses, including 7 who are Judge vote today. The Senate is very fortu- enough; enough obstruction, enough Alito’s colleagues on the Third Circuit; nate. He was in a head-on collision in partisanship, enough disrespect to Judge Alito’s answer to over 650 ques- Las Vegas going to the airport to re- these good, decent, and accomplished tions, doubling the number of ques- turn to Washington, DC. I spoke to him professionals. We put forward a very tions that either of President Clinton’s from the hospital. He is going to be simple, straightforward principle. A Supreme Court nominees answered; fine. He has no head injuries. The bags nominee with the support of a majority and 4 days of debate in the Senate. inflated, and I am sure saved him great of Senators deserves a fair up-or-down Despite all this, some Members have bodily pain. I talked to him. He was vote. And we led on that principle. Be- launched a partisan campaign to fili- under some medication. He said he is cause we did that, seven nominees who buster this nominee and have forced sore but he is going to be fine.

VerDate Aug 31 2005 02:30 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00049 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.067 S30JAPT1 ycherry on PROD1PC64 with SENATE S308 CONGRESSIONAL RECORD — SENATE January 30, 2006 With all the travel we do, we all live Isakson McConnell Smith It has been 4 years since 9/11, and Johnson Murkowski Snowe on the edge of something happening. I Kohl Nelson (FL) Specter after all their rock-throwing, Demo- am so happy Senator ENSIGN is fine. He Kyl Nelson (NE) Stevens crats still have no plan for victory in is a wonderful man. He has great faith. Landrieu Pryor Sununu the war on terror. In fact, they have He is a good friend of mine and to all Lieberman Roberts Talent undermined the war effort with par- Lincoln Rockefeller Thomas of the Senate. I know all of our Lott Salazar Thune tisan attacks on the President. thoughts and prayers will be with him. Lugar Santorum Vitter They have complained about the I am confident he is going to be fine. Martinez Sessions Voinovich economy since President Bush took of- As indicated, I spoke with him. I McCain Shelby Warner fice, but almost everything they do want Darlene, especially, to know our NAYS—25 makes it harder for American busi- thoughts are with her and the children. Bayh Jeffords Obama nesses to compete. Biden Kennedy Reed CLOTURE MOTION Democrats spent the last year criti- Boxer Kerry Reid cizing Republican efforts to strengthen The PRESIDING OFFICER. Under Clinton Lautenberg Sarbanes Social Security but still offer nothing the previous order, the hour of 4:30 hav- Dayton Leahy Schumer Dodd Levin to fix this system in crisis. They even ing arrived, the Senate will proceed to Stabenow Durbin Menendez Wyden refuse to guarantee benefits for today’s a vote on the motion to invoke cloture Feingold Mikulski seniors and blocked a bill that would on Executive Calendar No. 490. Feinstein Murray have stopped Congress from spending Under the previous order, the clerk NOT VOTING—3 Social Security dollars on other Gov- will report the motion to invoke clo- Ensign Hagel Harkin ernment programs. ture. The PRESIDING OFFICER. On this They have decried looming deficits The legislative clerk read as follows: vote, yeas are 72, the nays are 25. but offer no map to a balanced budget, CLOTURE MOTION Three-fifths of the Senators duly cho- instead calling for higher taxes and We the undersigned Senators, in accord- sen and sworn having voted in the af- more spending programs. ance with the provisions of rule XXII of the firmative, the motion is agreed to. How are we to take seriously a party Standing Rules of the Senate, do hereby The PRESIDING OFFICER. The Sen- that has no legislative agenda, that has move to bring to a close debate on the nomi- ator from South Carolina is recognized. no solutions or ideas to solve Amer- nation of Samuel A. Alito, Jr., of New Jersey Mr. DEMINT. Mr. President, I ask ica’s greatest challenges? to be an Associate Justice of the Supreme unanimous consent to speak for 15 min- Court of the United States. In stark contrast to the Democrats’ utes. invisible agenda, Republicans have Bill Frist, Elizabeth Dole, Michael B. Mrs. BOXER. Mr. President, reserv- Enzi, Jim DeMint, Wayne Allard, Kit clearly articulated and delivered a bold Bond, John Ensign, Arlen Specter, ing the right to object, and I will not agenda to secure America’s future. And Rick Santorum, Kay Bailey Hutchison, object, would my friend extend his while we have had some victories in re- Pete Domenici, Judd Gregg, Lisa Mur- unanimous consent request to include cent years, the truth is that Democrats kowski, Norm Coleman, George Allen, the following Democratic Members: have fought bitterly to block progress Mitch McConnell. Senator BOXER for 20 minutes, Senator for America every step of the way. The PRESIDING OFFICER. By unan- BAUCUS for 20 minutes, Senator DODD Then these same Democrats come to imous consent, the mandatory quorum for 20 minutes, and Senator BIDEN for 5 this floor and blame inaction on Re- call has been waived. minutes. publicans. Mr. DEMINT. Mr. President, I do add The question is, Is it the sense of the To give just one example, Repub- Senate that debate on Executive Cal- that to the request. The PRESIDING OFFICER. Without licans have been working for decades to endar No. 490, the nomination of Sam- objection, it is so ordered. secure America’s energy independence. uel A. Alito, Jr., of New Jersey, to be The Senator from South Carolina is However, Democrats, at the behest of Associate Justice of the Supreme Court recognized. extreme environmental activists, op- of the United States, shall be brought STATE OF THE UNION ADDRESS pose real solutions to high energy to a close? The yeas and nays are man- Mr. DEMINT. Mr. President, today prices such as increasing production of datory under the rule. the Democratic leader, HARRY REID, domestic oil and natural gas supplies The clerk will call the roll. gave what was billed as a ‘‘prebuttal’’ and removing barriers to oil refinery The assistant legislative clerk pro- to the President’s upcoming State of investment such as onerous permitting ceeded to call the roll. the Union Address. requirements and a proliferation of Mr. MCCONNELL. The following Sen- I am, frankly, astounded that he boutique fuel blends. ators were necessarily absent: the Sen- would criticize a speech so harshly that Just last month, Democrats blocked ator from Nevada (Mr. ENSIGN) and the has not even been given yet. energy exploration and production on Senator from Nebraska (Mr. HAGEL). I will let the President speak for the Coastal Plain of the Arctic Na- Mr. DURBIN. I announce that the himself when he addresses the Nation tional Wildlife Refuge which would Senator from Iowa (Mr. HARKIN) is nec- tomorrow night, but this misleading provide millions of barrels of oil a day, essarily absent. partisan rhetoric put forth on this or about 4.5 percent of the current U.S. I further announce that if present floor by the Senator from Nevada can- consumption, with no significant envi- and voting, the Senator from Iowa (Mr. not go unanswered, rhetoric which, un- ronmental impact. HARKIN) would vote ‘‘nay.’’ fortunately, further proves Democrats It is not just in Alaska where Demo- The PRESIDING OFFICER. Are there will say anything but do nothing. crats oppose efforts to access our Na- any other Senators in the Chamber de- Today, we heard many of the same tion’s energy resources. It has been es- siring to vote? tired cliches from the minority leader. timated that enough natural gas lies The yeas and nays resulted—yeas 72, He talks about a credibility gap. Well, under the Outer Continental Shelf and nays 25, as follows: the largest credibility gap in American in the interior Western States to sup- [Rollcall Vote No. 1 Ex.] politics is between what Democrats say ply 27 years’ worth of natural gas con- and what they do. Democrats promised sumption, the primary fuel used to YEAS—72 months ago to bring forth their own heat Americans’ homes. Yet Democrats Akaka Cantwell DeWine legislative agenda, but the Nation is support policies that have closed these Alexander Carper Dole Allard Chafee Domenici still waiting. Day after day, the Demo- areas to exploration and production. Allen Chambliss Dorgan crats launch attack after attack on Re- The administration has attempted to Baucus Coburn Enzi publicans and our agenda, but how are cut regulatory redtape, reduce regu- Bennett Cochran Frist Bingaman Coleman Graham we to take them seriously when they latory costs, and streamline regulatory Bond Collins Grassley cannot articulate a clear plan of their processes to allow more sensible use of Brownback Conrad Gregg own? They will say anything to get a the Nation’s energy resources, while Bunning Cornyn Hatch media sound bite, but when it comes to maintaining environmental stand- Burns Craig Hutchison Burr Crapo Inhofe solving today’s challenges, Democrats ards—efforts that have been largely Byrd DeMint Inouye do nothing. rebuffed by Democrats in Congress.

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00050 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.062 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S309 The obstacle to America’s energy mosphere in the Senate, and it is turn- in my case, three decades—and we independence is clear: it is the block- ing off Americans from the public de- know that when certain issues come ade formed by the Democratic Party. bate. The consequences of these actions before us, they are so profound, they In seeking to appease far-left interest will be fewer and fewer Democrats re- are so important to the people we rep- groups, Democrats have blocked Re- turning next year. This has been resent, they are such a watershed that publican efforts to reduce our depend- proved out during the last elections, as they need to be marked, not rushed. ence on foreign oil and have needlessly I and my fellow freshman Republican The vote on Samuel Alito to be a allowed energy prices to climb higher Senators can testify. Justice of the Supreme Court is such a and higher for America’s families. If Democrats sincerely want the op- moment in our history. Yes, we are Senator REID likes to say Democrats portunity to govern again, they need to having two votes on this nomination, can do better. I think he is right, abandon this ‘‘say anything, do noth- one just completed, which gave me and Democrats should do better. They have ing’’ stance and put forward some ideas other opponents of the nomination an been conducting a war of rhetoric for and solutions. Regardless, the Repub- opportunity to signal that this nomi- years without offering anything posi- lican Party will not wait around. We nation should be sent back to the tive to the public debate. Americans will continue to secure America’s fu- President for a mainstream nominee in are rightly frustrated with a Demo- ture with a bold, positive agenda. the mold of Sandra Day O’Connor. cratic Party that will say anything but The PRESIDING OFFICER. The Sen- We fell short of the 41 votes we need- do nothing. ator from California. ed to send this nomination back. But Now let me address what has become Mrs. BOXER. Mr. President, I wish to yet I am still glad I had the oppor- the favorite sound bite of the Demo- amend the unanimous consent agree- tunity to go on record twice. And do cratic Party. Senator REID said it ment to add an additional 10 minutes you know why? Because the Supreme today and many times over the last for Senator BAUCUS, which will give Court belongs to the people of America. week, what he likes to call the ‘‘cul- him 30 minutes. It is their court. It is not George ture of corruption.’’ Apparently, Demo- The PRESIDING OFFICER. Without Bush’s court. It is not any Senator’s crats believe this media strategy will objection, it is so ordered. court. It is the people’s court, and the carry them to a sweeping electoral vic- Mr. DEMINT. Mr. President, I ask the highest court. It is their freedoms that tory in November. I have news for my Senator to add to her request that fol- are at stake, their protection from a Democratic colleagues: The problem of lowing the Democratic-allowed time power-hungry Executive, their right to outside influence on Congress is not a that has already been agreed to, Sen- clean air, to clean water, and safe com- partisan issue. This is a bipartisan ator INHOFE be recognized for up to an munities, their right to make private problem and requires a bipartisan solu- hour. decisions with their families, not with tion. Mrs. BOXER. Certainly. I ask that at Senators and Congressmen and a Presi- For those hoping to usher in a new the conclusion of Senator BIDEN’s re- dent or Vice President breathing down Democratic majority in Congress on a marks, Senator INHOFE be recognized their necks. media sound bite, history teaches us for up to an hour. So although we knew the votes were not there for the filibuster of Judge that elections are won on ideas, not The PRESIDING OFFICER. Without Alito, we felt it was appropriate to use rhetoric. Americans are far too smart objection, it is so ordered. that historic Senate debate tool so the and today’s challenges are far too seri- The Senator from California. American people would know that we ous for Democrats to expect they can Mrs. BOXER. Mr. President, I was were willing to pursue even a losing ef- coast to a victory in November with no listening to the Senator from South Carolina. I thought he was going to fort because the stakes are so high. solutions and no ideas. Tomorrow, we will cast our votes on Republicans learned this lesson long make some comments about the vote the nomination itself, and I want the that just took place on one of the most ago from one of our greatest teachers, record to reflect why I will be voting important issues facing the Senate. In- Ronald Reagan. President Reagan al- no. ways talked about ideas that still reso- stead, he launched into an attack on Mr. President. Every judicial nomi- nate with Americans today: limited Senator HARRY REID. nation is important, but rarely are the government, personal freedom and re- Shakespeare once said something to stakes as high for the Nation as they sponsibility, and peace through this effect: When someone acts that are in the case of the nomination of strength. way, he is protesting too much. So Samuel Alito to be an Associate Jus- Republicans did not win on rhetoric Senator REID must have hit a chord tice of the Supreme Court. in 1994. We won because Americans with the Senator from South Carolina, We now have a divided Court, a di- agreed with our solutions: lower taxes, and there are reasons for it. vided Congress, and a divided elec- fiscal responsibility, traditional val- Senator REID speaks straight from torate, as evidenced in the last two ues, and strong national defense. the heart, straight from the shoulder. Presidential elections. Unfortunately, President Bush has connected with He is fighting for the American people. we also have a President who failed to the American people because he has He wants us to fix the mess this Presi- remember his promise, which he made run his campaigns on ideas. He prom- dent and this Congress made in the in the campaign of 2000: to govern from ised to lower taxes, and he has. He Medicare prescription drug benefit. He the center—to be ‘‘a uniter, not a di- promised to aggressively fight the war wants us to take care of our men and vider.’’ If he had kept that promise, he on terror to protect American families, women in uniform. He wants to make would not have nominated Samuel and he has. He promised to nominate sure the budgets are balanced. He Alito. judges who will follow the law instead wants to make sure that our families Judge Alito was nominated to take of creating it, and he has. have health care, that we are moving the seat of Justice Sandra Day O’Con- Yet, as Senator REID demonstrated forward on homeland security, and nor, the first woman on the Court. She today, Democrats still do not under- cleaning up the culture of corruption has long been the swing vote, and a stand that Americans want solutions, which has been brought to us by the commonsense voice of moderation, in not more partisan rhetoric. I know ruling party. Remember, we have one some of the most important cases to there are some Democrats who do have party that rules Washington. come before the Court, including a some good ideas and desire to work to- So I think his remarks must have woman’s right to choose, civil rights, gether to improve the lives of Ameri- deeply touched the Senator from South and freedom of religion. cans. I have talked to many of my col- Carolina for him to launch into such a The right thing to do for the court leagues on the other side of the aisle personal attack on the Democratic and for the Nation would have been to who do seem to understand the reality, leader. I stand here and say: Keep it up, nominate someone in the mold of Jus- but their leadership refuses to allow Senator REID. You must be doing some- tice O’Connor, and that is what the them to break from the party line. thing right to elicit that kind of out- President should have done. I urge the Democratic Party to think rageous response. Let me be clear: I do not deny Judge long and hard about the war of rhetoric Mr. President, many of us have been Alito’s judicial qualifications. He is ex- they are waging. It is poisoning the at- in elected life for more than a decade— perienced, intelligent, and capable. His

VerDate Aug 31 2005 00:57 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00051 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.069 S30JAPT1 ycherry on PROD1PC64 with SENATE S310 CONGRESSIONAL RECORD — SENATE January 30, 2006 family should be proud of him, and all approving his nomination could have tees—the fourth amendment right Americans should be proud that the dire consequences for our Nation. against unreasonable searches—is stun- American dream was there for him and In reviewing Judge Alito’s record, I ning. As Judge Alito’s own court said for the Alito family. asked myself whether, as a Supreme regarding warrants, ‘‘a particular de- But these facts do not outweigh my Court Justice, he would be likely to scription is the touchstone of the deep conviction that Judge Alito’s ex- vote to preserve fundamental American fourth Amendment.’’ Americans have treme views of the law make him the liberties, values, and interests for all reason to fear a Supreme Court justice wrong person for this job. the people. who does not understand this funda- As a Senator, I have no more solemn Would Justice Alito vote to uphold mental constitutional protection. duty than to vote on a nomination for Congress’s constitutional authority to Would Justice Alito vote to let citi- the Supreme Court of the United pass laws to protect Americans’ health, zens stop companies from polluting States. These are lifetime appoint- safety, and welfare? The record says their communities? The record says no. ments, with extraordinary power to no. When his Third Circuit Court of Ap- In a case involving toxic discharges shape the law of the land, and to affect peals voted to uphold a ban on machine into a major river, Judge Alito voted the lives of Americans, not just those gun possession, Judge Alito voted to to stop citizens from taking the pol- living now, but for generations to strike it down because he said Congress luting company to court, as they were come. lacked the power to enact such a law. authorized to do under the Clean Water In the 218 years since our Constitu- His colleagues on the court criticized Act. Fortunately, in another case sev- tion was adopted, our Nation has made him, saying his position ran counter to eral years later, the Supreme Court great strides toward achieving the ‘‘a basic tenet of the constitutional overturned Alito’s narrow reading of more perfect Union that the Founding separation of powers.’’ the law. Fathers dreamed of Women were given Would Justice Alito vote to protect Would Justice Alito vote to let work- the right to vote. African-Americans the right to privacy, especially a wom- ing women and men have their day in were given civil rights. A right to per- an’s reproductive freedom? Judge court against employers who discrimi- sonal privacy has been recognized for Alito’s record says no. We have all nate against them? Judge Alito’s women and families. The accused have heard about Judge Alito’s 1985 job ap- record says no. In a 1997 case, Judge a right to counsel. Congress has been plication which he wrote that the Con- Alito was the only judge to say that a recognized to have the power to enact stitution does not protect the right of hotel employee claiming racial dis- laws protecting the health and safety a woman to choose. When given the crimination could not take her case to of the people. This has led to a cleaner chance to disavow that position during a jury. His colleagues on the court said environment, safer workplaces and the hearings, he refused to do so. He that if his standard for getting to a communities, and better health care had the chance to say, as Judge Rob- jury were required of a plaintiff, it for all Americans. erts did, that Roe v. Wade is settled would ‘‘eviscerate’’ title VII of the We who have enjoyed the fruits of law, and he refused. Civil Rights Act of 1964, which pro- When given the chance to explain his this progress owe it to future genera- hibits discrimination in the workplace. dissent in the Casey decision, in which tions not to let it slip away. Thus, in a In another case, a female employee he argued that the Pennsylvania spous- sued for discrimination, alleging that vote such as this, which will have long al notification requirement was not an after she complained about incidents of lasting effects, it is incumbent on us to undue burden on a woman seeking an sexual harassment, she was demoted consider what those effects might be. abortion because it would affect only a If Judge Alito is confirmed, he will and marginalized to the point that she small number of women, he refused to join the far right wing of the Court was forced to quit. By a vote of 10 to 1, back away from his position. The Su- the Third Circuit found for the plain- now led by Justices Scalia and Thom- preme Court, by a 5 to 4 vote, found the tiff. Guess who was the one? Only as. Should their extreme views of the provision to be unconstitutional, and Judge Alito thought the employee Constitution ultimately prevail—as Justice O’Connor, cowriting for the should have to show that discrimina- they may well do in the very near fu- Court, criticized the faulty analysis tion was the main cause of the employ- ture—I fear they will take our Nation supported by Judge Alito, saying that er’s action. Using his standard would on a backward path—toward a time of ‘‘the analysis does not end with the one make it almost impossible for a woman fewer rights for individuals and greater percent of women’’ affected. ‘‘it begins claiming discrimination in the work- restrictions on Congress’s ability to there.’’ place to get to trial. protect the public health and welfare. Judge Alito’s ominous statements Would Justice Alito be an effective In addition, I believe that Judge Alito and narrow-minded reasoning clearly check on an overreaching executive will support Justice Thomas’s radical signal a hostility to women’s rights, branch? Judge Alito’s record says no. ideas about stronger Presidential pow- and portend a move back toward the As a Judiciary Department lawyer, ers. dark days when abortion was illegal in Alito wrote a memorandum proposing In short, our children could end up many States, and many women died as that the President assert his own inter- living in a very different America from a result. pretations of statutes by issuing ‘‘sign- the one we treasure. What kind of Na- In the 21st century, it is astounding ing statements’’ when the laws are en- tion would that be? that a nominee for the Supreme Court acted. He said this would give the Ex- Abortion undoubtedly would be ille- would not view Roe v. Wade as settled ecutive ‘‘the last word’’ on interpreting gal in many States. Dangerous auto- law. The fundamental principle of the laws. matic weapons might become broadly Roe—a woman’s right to make repro- The administration is now asserting available. It might be almost impos- ductive choices for herself—has been vast powers, including spying on Amer- sible to get a claim of workplace dis- reaffirmed many times since it was de- ican citizens without seeking warrants, crimination to a jury. Search warrants cided. in clear violation of the Foreign Intel- might not have to be issued, or if they Would Justice Alito vote to protect ligence Surveillance Act, violating were, wouldn’t have to be specific. The Americans from illegal searches in vio- international treaties, and ignoring Nation’s most important environ- lation of the fourth amendment? Judge laws that ban torture. mental laws might be made toothless Alito’s record says no. In a 2004 case, he We need Justices who will put a for lack of enforcement in the courts. found that a police strip search of a 10– check on such overreaching by the Ex- Trial by jury, one of the most precious year-old girl was lawful, even though ecutive, not rubberstamp it. Judge of all rights guaranteed to Americans she was not named in the warrant. Alito’s record and his answers at the by their Constitution, could be tainted Judge Alito said that even if the war- hearings raise very serious doubts by racism in the selection of Jurors. rant did not actually authorize the about his commitment to being a This is a harsh picture, but I believe search of the girl, ‘‘a reasonable police strong check on an ‘‘imperial Presi- it is not unrealistic. If you consider officer could certainly have read the dent.’’ where the Court is now and consider warrant as doing so . . .’’ During the hearings, we all felt great Judge Alito’s record and views care- This cavalier attitude toward one of compassion for Mrs. Alito when she be- fully, you must conclude, as I did, that our most basic constitutional guaran- came emotional in reaction to the

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The law embodies Third, the nominee should fall within right. the story of a nation’s development through the broad mainstream of contemporary Emotions have run high during this many centuries, and it cannot be dealt with judicial thought. Justices must possess process. That is understandable. But I as if it contained only the axioms and cor- the requisite judicial philosophy to be wish the press had focused more on the ollaries of a book of mathematics. entrusted with the Court’s sweeping tears of those who will be affected if What Holmes meant is that the law constitutional powers. I believed that Judge Alito becomes Justice Alito and is a living thing, that those who inter- then-Judge and now Chief Justice Rob- his extreme views prevail. pret it must do so with wisdom and hu- erts met those tests. That is why I I worry about the tears of a worker manity, and with an understanding of voted to support his confirmation. who, having failed to get a promotion the consequences of their judgments Measuring Judge Alito against these because of discrimination, is denied the for the lives of the people they affect. three criteria, I have decided he does opportunity to pursue her claim in It is with deep regret that I conclude not meet these three tests. I do not court. that Judge Alito’ s judicial philosophy think he is the right choice for my I worry about the tears of a woman lacks this wisdom, humanity, and mod- State of Montana or for our country. who is forced by law to tell her hus- eration. He is simply too far out of the This was not an easy decision. I grap- band that she wants to terminate her mainstream in his thinking. His opin- pled with it. I took my time. I have re- pregnancy and is afraid that he will ions demonstrate neither the independ- viewed this nomination very carefully. leave her or stop supporting her. ence of mind nor the depth of heart I reviewed Judge Alito’s prior writings I worry about the tears of a young that I believe we need in our Supreme and case rulings. I reviewed his Judici- girl who is strip searched in her own Court Justices, particularly at this ary Committee testimony and I met home by police who have no valid war- crucial time in our Nation’s history. with Judge Alito personally for over an rant. That is why I must oppose this nomi- hour. Nominations to the Supreme Court I worry about the tears of a mentally nation. rank among the Senate’s most impor- retarded man who has been brutally as- The PRESIDING OFFICER. Under tant decisions. Only the brightest, saulted in the workplace, when his the previous order, the Senator from most objective minds should serve on claim of workplace harassment is dis- Montana is recognized. the bench. But Judge Alito, in my missed by the court simply because his Mr. BAUCUS. I ask unanimous con- judgment, stands outside the main- lawyer failed to file a well-written sent the order for recognition of Sen- stream. I base my decision on what I brief on his behalf. ator BIDEN be vitiated. think is right for my State and my These are real cases in which Judge The PRESIDING OFFICER. Without country, and that is why I cannot sup- Alito has spoken. Fortunately, his objection, it is so ordered. Mr. BAUCUS. Mr. President, on the port this nomination. views did not prevail in these cases. I reviewed the Judiciary Committee’s But if he sits on the Supreme Court, he corridor of the first floor of this Cap- itol building appear the words of Sam- hearings. The Judiciary Committee will have a much more powerful voice. held 5 days of hearings. The committee uel Adams: His voice that will replace one of mod- questioned Judge Alito for 4 days. The eration and balance, and he will join Freedom of thought and the right of pri- committee heard from panels sup- the voices of other Justices who share vate judgment in matters of conscience di- rect their course to this happy country. porting and opposing his nomination. his severe views. The Judiciary Committee members Perhaps the most important state- America still stands as the world’s sought Judge Alito’s views on many ment Judge Alito made during the en- beacon of individual rights and lib- matters, including States rights, anti- tire hearing process was when he told erties. Of that I know we are very discrimination laws, immigrant rights, the Judiciary Committee that he ex- proud. In large part, it is because of due process, privacy, equal protection, pects to be the same kind of Justice on our Supreme Court. Our Founding Fa- ethical considerations, and broad judi- the Supreme Court as he has been a thers were very wise setting up three cial philosophy. Judge Alito responded judge on the Circuit Court. separate branches of Government, in- eloquently, but he provided little de- That is precisely the problem. As a cluding a very strong, independent ju- tail. Members of the Committee at- judge, Samuel Alito seemed to ap- diciary, something many countries tempted to pin Judge Alito down on proach his cases with an analytical have struggled to attain, and their fail- many of his views, but Judge Alito did coldness that reflected no concern for ure to achieve greatness is largely be- not offer detailed answers to their the human consequences of his rea- cause they do not have a very strong, questions, at least not enough informa- soning. independent judiciary—and I mean tion to get a sense of who he was and Listen to what he said about a case independent. where he was. Judge Alito appeared involving an African-American man The Senate protects the independ- well prepared for these hearings—very convicted of murder by an all white ence of the Supreme Court. How? By well prepared, I might add. He appeared jury in a courtroom where the prosecu- seriously exercising its responsibility to have been advised to say as little as tors had eliminated all African-Amer- to advise and consent on the nomina- possible. ican jurors in many previous murder tions to that honorable Court. It is in On January 24, the Judiciary Com- trials as well. the Constitution. We all take that duty mittee voted to report Judge Alito’s Judge Alito dismissed this evidence seriously. We take it seriously by ex- nomination on a party-line vote. Un- of racial bias and said that the jury amining nominees. I personally have fortunate, but that is how it turned makeup was no more relevant than the three criteria I use to examine nomi- out; again, I think in part because of fact that lefthanders have won five of nees. They are professional com- the nature of the nominee’s views. the last six Presidential elections. petence, personal integrity, and a view Let me take a few moments to exam- When asked about this analogy during of important issues within the main- ine Judge Alito’s nomination in great- the hearings, he said it ‘‘went to the stream of contemporary judicial er detail against the criteria I have issue of statistics . . . (which) is a thought. Let me review those three cri- laid out. First, professional com- branch of mathematics, and there are teria. petence. Mr. Alito received an excel- ways to analyze statistics so that you First, professional competence. The lent education. He holds an under- draw sound conclusions from them. Supreme Court must not be a testing graduate degree from Princeton and a ...’’ ground for the development of a ju- law degree from Yale School of Law. That response would have been ap- rist’s basic values. Nor should a Justice Judge Alito also has extensive experi- propriate for a college math professor, require further training. The stakes ence as a judge, serving 15 years as a

VerDate Aug 31 2005 01:15 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00053 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.035 S30JAPT1 ycherry on PROD1PC64 with SENATE S312 CONGRESSIONAL RECORD — SENATE January 30, 2006 judge on the Third Circuit Court of Ap- of arguing against letting women and The American people expect their na- peals. In fact, he has served more years minorities attend Princeton. When tional leaders to comply faithfully on the bench than many nominees to questioned about Concerned Alumni of with the tax laws. A showing that lead- the Supreme Court. Princeton, Judge Alito claimed that he ers in the Federal Government faith- Mr. Alito’s work prior to his judicial had no recollection of ever having been fully comply with the tax laws sends appointment focused exclusively on a member of the group. an important message to people who representing only one client, the U.S. Judge Alito testified: might consider cheating on their taxes. Government. Some have raised ques- I really have no specific recollection of On January 19, President Bush ap- tions about Judge Alito’s experience that organization. But since I put it down on peared to agree. He told small business protecting the rights of individuals that statement, then I certainly must have leaders in Sterling, VA, that public of- rather than the Government. I con- been a member at that time. . . . I have tried ficials’ tax returns should be public, be- clude that Judge Alito is professionally to think of what might have caused me to cause public officials have a ‘‘high re- competent to serve as a Supreme Court sign up for membership, and if I did, it must sponsibility to uphold the integrity of have been around that time. And the issue Justice. that had rankled me about Princeton for the process.’’ Second, personal integrity. Several some time was the issue of ROTC. I was in When I met with Judge Alito, I asked issues arise from Judge Alito’s promise ROTC when I was at Princeton and then him to release his tax returns for such to avoid conflicts of interest as a judge. until it was expelled from campus, and I a review. He initially agreed to do so. Some raised questions about Judge thought that was very wrong. But the White House official present at Alito’s sensitivity to the avoidance of Judge Alito’s response about Con- the meeting immediately intervened to conflicts of interest, and some raised cerned Alumni of Princeton raises con- block the release saying that he cannot questions about how steadfastly Judge cerns. In 1985, he apparently thought do so. Alito keeps his commitments to the that his membership in this discrimi- The President was right when he said Senate. natory organization was important in Virginia that the release of public In 1990, Judge Alito told the Senate enough to put on his page-and-a-half officials’ tax returns contributes to the Judiciary Committee that he would job application. His failure of memory integrity of our whole tax system. And disqualify himself from any cases in- now about that inconvenient position his White House was wrong to withhold volving five matters with which he had then raises questions about his credi- that information on Judge Alito. I will personal connections. Those matters bility. continue to press future nominees to were the Vanguard Companies, the bro- I am also disappointed that the allow this kind of neutral review of kerage firm of Smith Barney, the First White House has chosen not to release their tax, returns because I think it is Federal Savings & Loan of Rochester, Judge Alito’s tax returns for review by the right thing to do. Let me turn now to judicial philos- New York, his sister’s law firm, and the Joint Committee on Taxation. On matters that he worked on or super- ophy. December 13 of last year, I introduced I do not believe that a Senator vised at the United States Attorney’s a bill that would require all Supreme Office in New Jersey. In the period of should oppose a nominee just because Court nominees to submit 3 years of the nominee does not share that Sen- 1995 to 2002, however, Judge Alito heard tax returns to the nonpartisan Joint ator’s particular judicial philosophy. cases related to these matters. Committee on Taxation for review on a But the Senate must determine wheth- Judge Alito initially blamed the con- confidential basis. The Joint Com- flicts of interest on a computer glitch. er a nominee is in the broad main- mittee would report its findings on the stream of judicial thought. Is this a In subsequent correspondence with nominee’s tax compliance to the Fi- Senators on the Judiciary Committee, wise person, not an ideologue of the far nance and Judiciary Committee. left or the far right. The Senate must Judge Alito argued that his promise I might add that all nominees who during his 1990 confirmation hearings determine whether a nominee is com- are referred to the Finance Com- mitted to the protection of the basic referred to only his ‘‘initial service.’’ mittee—from Cabinet Secretaries to Constitutional values of the American He argued that as his service contin- Tax Court judges—have their tax re- people. ued, he found unduly restrictive his turns reviewed for compliance. The re- What are those values? 1990 promise to recuse himself from views are discreet and confidential. We One is the separation of powers of our cases involving entities in which he protect nominees’ personal informa- Federal Government—including the had a financial interest. And he argued tion. And I might say that in several independence of the Supreme Court that the mutual funds in which he was cases we found errors of facts, matters itself. invested were not at issue in the case that had to be attended to—and they Another is freedom of speech. An- that he heard. were. other is freedom of religion. Another is In his responses to questions con- I understand the administration does equal opportunity. Another is personal cerning Vanguard, Judge Alito testi- a ‘‘tax check’’ for all Supreme Court autonomy—the right to be left alone. fied: nominees. They say they already do And yet another is an understanding of I think that once the facts are set out, I one. But I believe it is important for the basic powers of the Congress to think that everybody will realize that in this Congress to do its own due diligence on pass important laws like those pro- instance I not only complied with the ethical a nominee’s tax returns. After all, this rules that are binding on federal judges—and viding for protection of the environ- they are very strict—but also that I did what is a person who serves on the judiciary. ment. I’ve tried to do throughout my career as a That is a separate branch, not the ex- These are not unimportant matters. judge, and that is to go beyond the letter of ecutive, not the judicial. Both enti- They are hugely difficult—all of these the ethics rules and to avoid any situation ties—namely both the Executive and are. where there might be an ethical question the congressional—have a stake in The stakes are high. The Senate has raised. making sure that the nominee’s tax re- a duty to ensure that the nominee will But Judge Alito also admitted to turns comply with the law. defend America’s mainstream Con- Senator KENNEDY that ‘‘if I had to do it I might also say, as I mentioned ear- stitutional values. all over again, I would have handled lier, many so-called tax checks the ad- Judge Alito’s record calls into ques- this case differently.’’ ministration has taken on other nomi- tion his ability to act as a check on ex- Judiciary Committee members also nees have been very inadequate, full of ecutive powers. Recently, many have asked about Judge Alito’s membership mistakes, and we have had to correct noted with concern the National Secu- in an organization called Concerned them. rity Agency’s surveillance of American Alumni of Princeton. In his 1985 job ap- The Finance Committee views proof citizens. At the Judiciary Committee’s plication to the Reagan Justice De- of the nominee’s tax compliance as a hearing, a number of questions focused partment, Judge Alito listed Concerned testament to the nominee’s integrity. on Judge Alito’s interpretations of ex- Alumni of Princeton as one of his ex- What individuals do on their tax re- ecutive power, and the importance of tracurricular activities. Concerned turns is a window on their ethical deci- the court’s role as an effective check Alumni of Princeton is an alumni sion making. It is a good test of integ- on overreaching presidential power and group that took the extreme position rity and character. on government intrusion.

VerDate Aug 31 2005 01:15 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00054 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.071 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S313 Judge Alito responded that ‘‘no per- Judge Alito has narrowly construed dent Reagan’s administration and to help to son is above the law.’’ But he did not constitutional criminal procedure pro- advance legal positions in which I personally provide assurances that he would act tections, such as the fourth amend- believe very strongly. I am particularly proud of my contributions in recent cases in on the Court to balance executive au- ment restrictions on search and sei- which the government has argued in the Su- thority. His prior statements and court zure. In the case of Doe v. Grody, for preme Court that . . . the Constitution does rulings indicate that he has an expan- example, Judge Alito wrote a dissent. not protect a right to an abortion. sive view of the scope of executive He argued that the strip search of a In June 1985, Mr. Alito wrote a 17- power and a narrow view of Congress’s mother and her 10-year-old daughter page memo providing a strategy for authority to legislate. without a proper search warrant did using the Government’s brief in the In a 1984 memorandum, Mr. Alito ar- not violate their constitutional rights. case of Thornburgh v. American Col- gued that the Attorney General de- That is his dissent, that is his view. lege of Obstetricians and Gynecologists serves blanket protection from law- Judge Alito testified: as an ‘‘opportunity to advance the goal suits when acting in the name of na- It was a rather technical issue about of bringing the eventual overruling of tional security, even when those ac- whether the affidavit that was submitted by Roe v. Wade, and in the meantime, of tions involve the illegal wiretapping of the police officers was properly incorporated mitigating its effects.’’ Judge Alito ad- American citizens. into the warrant for purposes of saying who could be searched. And I thought that it was, vocated a strategy of creating a series In a 2000 speech to the Federalist So- of burdens on a woman’s right to ciety, Judge Alito said that ‘‘the the- and I thought that it was quite clear that the magistrate had authorized a search for choose. In the hearings, however, ory of a unitary executive . . . best people who were on the premises. That was Judge Alito responded to Senator FEIN- captures the meaning of the Constitu- the point of disagreement. STEIN that he ‘‘did not advocate in the tion’s text and structure.’’ Judge Alito Judge Alito also refused to agree memo that an argument be made that said: ‘‘The President has not just some that Congress cannot take away the Roe be overruled.’’ executive powers, but the executive Supreme Court’s ability to protect In his hearings, Judge Alito acknowl- power—the whole thing.’’ Some have Americans’ First Amendment rights. edged that the Constitution protects a thus interpreted the theory of a uni- In contrast, both Chief Justice Rob- right to privacy generally. He agreed tary executive to support the propo- erts and former Chief Justice with the premise in the Griswold case, sition that the Constitution reserves Rehnquist have agreed to the position which protects the right to use contra- all executive power exclusively for the that Congress cannot take away the ceptives. It is unclear, however, how President. The theory would thus pro- Supreme Court’s ability to protect widely the right to privacy extends for hibit other branches of Government Americans’ first amendment rights. Judge Alito. from carrying out any power that one This is sometimes called ‘‘court strip- When pressed, Judge Alito refused to could characterize as having executive ping.’’ It is extremely critical, ex- acknowledge that the Constitution pro- characteristics. This view of executive tremely important. It is no academic tects a woman’s right to choose. Judge power could limit Congress’s ability, matter. Basically it is that the Con- Alito explained that he would approach for example, to create independent gress can say to the Supreme Court it privacy cases with an open mind. agencies such as the SEC with over- does not have jurisdiction to hear any On the Third Circuit Court of Ap- sight duties. And some believe that cases with respect to, say, the first peals, Judge Alito also wrote a dissent this view could allow the President the amendment brought by an individual in the case of Planned Parenthood of ability to legislate through signing citizen; that is, Congress can take Southeastern Pennsylvania v. Casey. statements. away the Court’s authority to interpret In that dissent, he argued that uphold- When Senator LEAHY pressed Judge the Constitution with respect to the ing Pennsylvania’s restrictive spousal Alito about his view of the unitary ex- first amendment. That is what that notification requirement did not place ecutive as well as his strategy of uti- view held. I think it is an outrageous an undue burden on women. lizing Presidential signing statements view. I don’t understand how anybody Yet Justice O’Connor, writing for the to expand executive authority, Judge can tentatively hold that view. majority of the Supreme Court, wrote Alito responded that he did not see a Judge Alito defended his viewpoint, that the spousal notification require- connection between these two prin- saying this is an academic debate on ment ‘‘embodies a view of marriage ciples. which scholars are divided. I am as- consonant with the common law status In a 1986 memo, Mr. Alito argued tounded at that answer. of married women, but repugnant of that ‘‘the President’s understanding of Judge Alito’s rulings on civil rights our present understanding of marriage the bill should be just as important as cases appear to set a high bar for prov- and of the nature of the rights secured that of Congress.’’ He argued that sign- ing unequal treatment. A review of his by the Constitution.’’ ing statements would allow the Presi- record indicates that plaintiffs rarely When questioned specifically about dent to ‘‘increase the power of the Ex- ever prevail. Senator COBURN defended the landmark case of Roe v. Wade, ecutive to shape the law.’’ Judge Alito’s record by noting that Judge Alito commented that he under- President Bush has employed this Judge Alito ruled for the ‘‘little guy’’ stands the principle of stare decisis— method of Presidential signing state- in a list of 13 cases. Judge Alito’s that courts should honor precedents. ments to document his interpretation record, however, includes almost 500 But he also said that this principle is of congressional legislation, again even published and unpublished opinions. not ‘‘an inexorable command.’’ though he is certainly not a member of Thirteen is not very many out of 500. Here again, Judge Alito’s statements Congress. He didn’t write the law. How Knight Ridder conducted a survey of contrast with then-Judge Roberts’ could he say what Congress intended to Judge Alito’s published opinions. They comments during his hearings. Judge do? He has, in fact, issued 108 signing concluded that: Roberts said in his hearings that Roe v. statements expanding his executive in- Wade was settled law. When Senators although Judge Alito’s opinions are rarely terpretation of the laws passed by Con- written with obvious ideology, he’s seldom asked Judge Alito about Judge Rob- gress. sided with a criminal defendant, a foreign erts’ statements, Judge Alito re- Judge Alito’s judicial rulings on the national facing deportation, an employee al- sponded that ‘‘I think it depends on Third Circuit Court of Appeals, as well leging discrimination or consumers suing big what one means by the term ‘settled.’’’ as his 1985 job application to the business. Judge Alito engaged in some discussion Reagan Justice Department, do not in- I am also concerned by Judge Alito’s about what ‘‘settled law’’ means to dicate an expansive view of civil rights responses to privacy questions at the him. His interpretation of how settled and civil liberties. In his 1985 job appli- Judiciary Committee hearings which the right to privacy is remains unclear. cation, Judge Alito wrote that he de- conflict with his past statements. In Judge Alito answered questions veloped a ‘‘deep interest in constitu- his 1985 job application, Mr. Alito about his judicial philosophy by testi- tional law, motivated in large part by wrote: fying that precedent is entitled to re- disagreement with the Warren Court.’’ It has been an honor and a source of per- spect. But he would not provide great Many credit the Warren Court with ex- sonal satisfaction for me to serve in the of- detail about specific precedents such as panding civil rights and civil liberties. fice of the Solicitor General during Presi- Roe v. Wade. Senator FEINSTEIN pushed

VerDate Aug 31 2005 01:15 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00055 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.037 S30JAPT1 ycherry on PROD1PC64 with SENATE S314 CONGRESSIONAL RECORD — SENATE January 30, 2006 Judge Alito to clarify the discrepancy Justice O’Connor’s seat, he could I feel strongly that there has not been between answering cases about one- change the balance of the Court, tip- a reasonable period of debate, let alone person one-vote, but not responding to ping it in a direction that could reverse an extended debate. questions about abortion and prece- or restrict important constitutional But I am only one Member. Cer- dent. Judge Alito did not give a clear protections. tainly, this institution cannot wait for answer. Based on all this information, I will one Member. I was allocated only 5 Judge Alito appears to support def- vote against this nomination. I believe minutes of time this afternoon to com- erence to the Framers’ original intent. that Judge Alito is out of the main- ment on this nomination. However, my Judge Alito testified: stream. He is not the right choice for flight was canceled out of Hartford, CT, I think we should look to the text of the our country. and thus, I lost that small window of 5 Constitution, as we should look to the mean- On a corridor on the first floor of this minutes to be heard. I consider the ing that someone would have taken from the Capitol building appear the words of matter of confirmation of a Supreme text of the Constitution at the time of its former Supreme Court Justice Louis D. Court Justice with great seriousness adoption. Brandeis, who said: and solemnity. In my view, some of the That is called originalism. The greatest dangers to liberty lurk in in- most important votes that we make in Judge Alito’s judicial philosophy of sidious encroachment by men of zeal, well- the Senate are to fill vacancies in the original intent raises concerns about meaning but without understanding. Judicial Branch, second only to dec- whether the Court could adapt to a I shall thus vote against this nomina- larations of war. Constitutional changing society. And his philosophy tion to carry out seriously my respon- amendments are not far behind. There- indicates that he may not take an ac- sibility as a Senator to Advise and fore, to be notified that I would have tive role in extending Constitutional Consent on nominations to that honor- only 5 minutes to comment on the protections to new situations in the able Court. I shall vote against this nomination of a Supreme Court Justice 21st century. nomination because I believe the nomi- who will serve for life, far beyond the I have some concern about one ruling nee is well-meaning, but without suffi- tenure of the Chairman of the Federal that Judge Alito issued related to the cient understanding of the importance Reserve Board, far beyond the tenure environment. In 2001, in the case of of our cherished rights and liberties. of a President of the United States, far W.R. Grace & Company v. United And I shall vote against this nomina- beyond the tenure of a Senator or Con- States Environmental Protection tion to help keep this great country gressman, I found rather disturbing. Agency, Judge Alito threw out the En- the world’s beacon of freedom. We have always respected one an- vironmental Protection Agency order The PRESIDING OFFICER (Mr. other here, at least we try to, and to under the Safe Drinking Water Act for CORNYN). The Senator from Oklahoma. recognize this is the Senate, different an ammonia-spill cleanup near Lan- The PRESIDING OFFICER. Under entirely from the body down the hall. sing, MI. Judge Alito concluded that the previous order, the Senator from We are a bicameral body for good rea- the government cleanup standard was Connecticut is now recognized for up to son. This is the place where we spend a ‘‘arbitrary and capricious.’’ He ex- 20 minutes. little more time evaluating issues that plained that the reason for not uphold- Mr. DODD. Mr. President, I wish to come before the Senate. To ask for a ing the order was that the EPA lacked commend my colleague, Senator MAX few more days to have discussion about a rational basis for imposing the clean- BAUCUS from Montana, before he leaves the nominee that has provoked serious up standards on the company. This the Floor, for a very fine statement. I controversy in the country, seems lit- case raises sensitivities for me, because appreciate his thoughts and comments. tle to ask. in my home state, W.R. Grace has I rise today to discuss my vote on the Put aside the nominee for a second, acted with complete disregard of the nomination of Judge Samuel Alito to put aside your decision to vote for or health effects for Montanans in Libby, the United States Supreme Court. against the nominee, we should respect where illness from tremolite asbestos First of all, I wish to briefly comment one another’s desire to be heard on caused by W.R. Grace has hit the com- on the cloture vote that occurred this these matters. Tomorrow is the State munity hard. afternoon. I voted not to invoke clo- of the Union, and there will be a photo In 1988, Judge Alito commented that ture on the nomination. I want to ex- opportunity for the President. I am Robert Bork ‘‘was one of the most out- plain why. deeply disturbed that this Senate may standing nominees of this century.’’ As many of my colleagues know, I have made a decision to rush this nom- When I asked Judge Alito about that, went through minor surgery to have a ination through, to invoke cloture, in he did not provide an adequate re- knee replacement before the holidays order to provide a photo opportunity sponse. He ducked the question. and I have been home in Connecticut for a swearing-in ceremony prior to He did not respond adequately to recuperating. I looked forward to com- this President’s State of the Union many of my questions. He evaded my ing back to participate in the debate Message. questions, questions I asked in good on the Judge Alito nomination and I I note the presence of my good friend faith, intended to elicit what kind of followed the confirmation process and colleague from Texas in the chair Justice he might be. closely from home. For this reason, I of the Presiding Officer. He serves on He was vague. He seemed not to want was somewhat stunned to learn that the Judiciary Committee. He watched to talk to me. He seemed not to want Senator FRIST filed a cloture motion the gavel-to-gavel hearing proceedings. to have an honest discussion about on the nomination a day after it was While I was at home rehabilitating this what kind of person he is. That is why voted out of the Judiciary Committee. knee, I had a chance to watch my col- I find it very difficult to support this I have been a member of this body for leagues do their job. The circumstances nominee. a quarter of a century and I have voted around this nomination have been com- I supported Judge Roberts for Chief to confirm the majority of the judicial plicated. The nomination came up Justice in large part because of Judge nominations that have come before after Harriet Miers withdrew. We had Roberts’ hearing testimony and re- this Senate. I, too, like my colleague the Thanksgiving holiday and the re- sponses when he met with me person- from Montana, voted with enthusiasm cess coming up. In fact, the Judiciary ally. for the nomination of Chief Justice Committee met when we were out of Judge Alito does not meet my stand- Roberts only a few months ago. The session. Obviously, the desire was to ards for a Supreme Court Justice. majority leader’s action was surprising move this along. I have no objection to Judge Alito has explained that he will to me. It is exceedingly rare that a clo- that. That seems to be a reasonable re- be ‘‘the same person that I was on the ture motion is filed on debate regard- quest to have the committee meet Court of Appeals.’’ Judge Alito’s record ing a Supreme Court nomination. In is when it did. Certainly, we all had an demonstrates that he is a very conserv- my experience, cloture motions have opportunity to watch those pro- ative judge who rules often in favor of gotten filed when the majority got ceedings. expanding executive authority and of frustrated with the minority for insist- The majority leader stated earlier limiting civil rights and civil liberties. ing upon extending debate—beyond a than we have consumed an excessive If the Senate confirms Judge Alito to reasonable period of time. In this case, amount of time on this nomination.

VerDate Aug 31 2005 01:15 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00056 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.041 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S315 This statement is correct if we meas- I, like many of my colleagues, have all of that. If this were the only cri- ure it by days on the calendar. If we supported the overwhelming majority teria, I would be for him. measure it by days we have actually of the current President’s judicial Judge Alito received his legal edu- been here during the last couple of nominees. Of the current President’s cation from Yale University School of months, it is incorrect. We have been 230 judicial nominees, only 5 have Law in my home State of Connecticut. out of session. There have been only a failed to be confirmed, a rather re- He served as a Government attorney in limited number of days in session and markable record. a number of positions including: As- In the course of my Senate career, I only a limited number of votes. Obvi- sistant Solicitor General, Deputy As- have never imposed a litmus test while ously, the number of days that have sistant Attorney General in the Office reviewing Supreme Court nominees. been consumed since the nominee was of Legal Counsel, and U.S. Attorney for But, due to the nature of a lifetime ap- presented to this Senate is more than the District of New Jersey under Presi- pointment, I feel they are entitled to a usual due to the circumstances sur- dent Reagan. In 1990, Judge Alito was higher level of scrutiny than other ju- rounding the nomination and holiday nominated by George H.W. Bush to session. dicial nominees for the Federal bench. I cannot allow the moment to pass I have three specific criteria that a U.S. 3rd Circuit Court of Appeals. In without expressing my concerns about Supreme Court must satisfy: First, I the course of his 15 years on the Fed- it and the rationale regarding why I require that the nominee possess the eral bench, Judge Alito has heard more voted against cloture. I would have technical and legal skills which we than 3,000 cases. Furthermore, the preferred not to have voted on a clo- must demand of all Federal judges. American Bar Association has twice ture motion at all. If this were an ex- Second, the nominee, in my view, must unanimously awarded Judge Alito with tended debate, the majority leader be of the highest character and credi- their highest rating of ‘‘well qualified.’’ might have been right to invoke clo- bility. And, finally, I vigorously exam- I have great respect and admiration for ture. I am troubled that now we are ine the nominee’s record to see wheth- his intellect, legal experience, and setting a new precedent for invoking er he or she displays a commitment to service to the American people as part cloture within only a short time after equal justice for all under the law, in of the Judicial Branch. a nomination comes out of the com- order to protect the individual rights ‘‘Next, I turn to character and cred- mittee. and liberties guaranteed by the Con- itability. The question is: Does Judge Mr. President, I rise today to explain stitution of the United States. Alito possess the qualities of mind and my vote on this nomination. Tomor- Now, I waited until after the com- temperament expected of a Supreme row, at 11 a.m., we are going to vote on mittee vote had occurred last week, Court Justice? I do not question wheth- the Alito nomination. and then, in an interview with my local er Judge Alito is personally decent or I would be remiss, obviously, if I did press in Connecticut, indicated how I if he has integrity. I was impressed by not thank the distinguished chairman would vote on this nominee. I have al- the diverse group of former clerks and of the Judiciary Committee, Senator ways done that. I have always reserved colleagues who testified before the Ju- SPECTER, and the minority ranking the first judgment to be made by the diciary Committee who could not have member, my good friend from committee. It seems to me to respect given him higher praise. Vermont, Senator LEAHY, for the ex- the committee process is very impor- traordinary service they have rendered tant, and the views of my colleagues Let me also say I know there were to the Senate, along with their col- are important to me. Whether I agree questions raised. I listened carefully leagues, during this nomination proc- with them or not, I like to hear how regarding these concern including ess. they have arrived at their decisions. those regarding the Concerned Alumni Over the last several months, these So on Supreme Court nominees, I of Princeton and the recusal issues members have managed three separate have never announced a view on a that were raised by a number of com- nominations to the Supreme Court: nominee until after the committee has mittee members on the Judiciary Com- Chief Justice Roberts, Harriet Miers, completed its review. Hence, less than mittee. These questions, while rel- and now Samuel Alito. They are to be a week after the committee voted, I evant, and certainly need to be ex- congratulated for their commitment to find myself having to rush to the floor plored, would not have decided my vote fair hearings and for the manner in to make a hurried statement on this on this nominee. I do not minimize it. which they discharged their duties. nominee. I am denied the opportunity But if my decision were to be based The Constitution, as we know, vests to debate back and forth with other solely on the recusal question or Judge in this great body, the Senate, the members of the Senate. Alito’s membership in the Concerned privilege and the solemn responsibility I waited to make my decision be- Alumni of Princeton issue, I would be to advise and give consent to the Presi- cause I felt that Judge Alito deserved a here supporting this nomination. dent on Supreme Court nominations—a hearing before the Judiciary Com- Those are not the most important unique role in our governance. The mittee. I felt that each of us who are issues to this Member. But what is im- Framers intended for the Senate to not on the committee should have an portant are other issues that were take an active role in the confirmation opportunity to review the transcripts raised during this nomination. Indeed, process. However, the Constitution of that hearing and then engage, as I am troubled that throughout Judge does not delineate the factors by which nonmembers of the committee, in a Alito’s hearings, Judge Alito failed to each Member of this body should deter- discussion of the merits and demerits provide clear and germane responses to mine the fitness of a judicial nominee of this nominee. That has been denied legitimate questions. to serve his or her lifetime appoint- this Member because of the cloture mo- A few examples. For instance, when ment on the Federal bench. Thus, each tion filed by the majority leader, pro- Senator SCHUMER, our colleague from Member of the Senate, each Senator, voking what I deeply regret that oc- New York, asked Judge Alito if he still must determine for him or herself the curred only a few hours ago, and that believed his statement from the 1985 acceptable criteria in judging a Su- was actually to have to vote on a clo- memo that said the ‘‘Constitution does preme Court nominee. ture motion. I have never opposed a nominee sole- I did not like casting that vote. I did not protect the right to an abortion,’’ ly because he or she holds different not want to vote for it, but I felt I de- rather than reply with a simple yes or views than my own regarding the Con- served the opportunity to be heard. So no answer, Judge Alito deflected the stitution or the Court’s role in inter- I do not regret at all that I am a part question and instead replied, ‘‘The an- preting or applying it. I have supported of a very small minority that voted swer to the question is that I would ad- seven of the last nine nominees to the against cloture. I wish more Members dress the issue in accordance with the Supreme Court, including the current had. But I wish the majority leader had judicial process as I understand it and President’s nomination of John Rob- not filed that cloture motion, which as I have practiced it.’’ erts to be our country’s Chief Justice. provoked the exact scene we saw unfold When Senator FEINSTEIN of Cali- As I said earlier, I did it with enthu- here a few hours ago. fornia asked Judge Alito if Roe v. Wade siasm, having witnessed and gone Now, there is little question in my was the settled law of the land—not an through the process and watched the mind as to Judge Alito’s intellectual unpredictable question, a fair one, one process of his confirmation hearing. competence and legal experience, and you might ask about Brown v. Board of

VerDate Aug 31 2005 02:30 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00057 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.079 S30JAPT1 ycherry on PROD1PC64 with SENATE S316 CONGRESSIONAL RECORD — SENATE January 30, 2006 Education, Griswold v. Connecticut, thirties. This is not some 18-year-old motion because she was black. While and there is a long list of cases that are who is writing these thoughts. Of the Third Circuit Court of Appeals considered established law, settled course, before becoming a judge, in ruled that the plaintiff had established law—when she asked the nominee that case, he was merely outlining the the essential elements of a case of race whether Roe v. Wade—one in that lit- development of his thinking about con- discrimination and therefore was enti- any of cases—is settled law, instead of stitutional law at the time and pledged tled to go to trial by a jury, Judge answering it directly one way or the to keep an ‘‘open mind’’ if confirmed to Alito dissented. He argued for a height- other, as Justice Roberts did, in very the Supreme Court. Well, that is nice ened evidentiary burden in order to unequivocal terms—others might have to know. I am glad to hear he is going protect employers who, in the future, said absolutely not; that would have to have an open mind. would have to choose between—and I been a very straightforward answer— The seven current and former mem- quote—‘‘competing candidates of what did we hear? He said—this is bers of the Third Circuit Court of Ap- roughly equal qualifications and the reminiscent of some comments that peals stated Judge Alito is ‘‘not an candidate who is not hired or promoted were heard earlier—‘‘I think it depends ideologue,’’ ‘‘has no agenda,’’ and ‘‘is claims discrimination.’’ The majority on what one means by the term ‘well attentive and respectful of all views again criticized Alito’s approach stat- settled.’’’ and is keenly aware that judicial deci- ing that ‘‘Title VII would be evis- When Senator DURBIN of Illinois sions are not academic exercises but cerated if our analysis were to halt asked the same question, Judge Alito have far-reaching consequences on peo- where the dissent suggests.’’ offered the convoluted response: ‘‘It ple’s lives.’’ I think those were cer- I also fear that if confirmed, Judge is—if settled means that it can’t be re- tainly worthwhile comments to make, Alito may pose a threat to the laws examined, then that’s one thing. If set- and certainly the comments of his fel- that protected disabled citizens from tled means that it is a precedent then low peers on the court I found to be discrimination. In Nathanson v. Med- that is entitled to respect of stare deci- compelling arguments on his behalf. ical College of Pennsylvania the major- sis . . . then it is a precedent that is However, I must say, having said all of ity held that the plaintiff, a victim dis- protected, entitled to respect under the that—I respect the fact they said it in abled by a terrible car accident, should doctrine of stare decisis in that way.’’ our hearings—Judge Alito’s long record be allowed to present, to the jury, evi- Imagine giving that answer to Brown as a Third Circuit judge, particularly dence that the college had failed to v. Board of Education. Imagine giving in cases involving questions of indi- make reasonable accommodation for that answer to the long list of cases we vidual rights, indicates a personal in- her disability. Alito dissented, and now have as settled law. Now, the an- tent on stripping away many of these again the majority reacted strongly to swer is, as Justice Roberts said: ‘‘It is so-called Warren Court era achieve- Alito’s analysis: ‘‘few if any Rehabili- settled law’’. But what you have here ments. In Reynolds v. Simms, for in- tation Act cases would survive sum- with Judge Alito is this dance going on stance, Justice Warren wrote: mary judgment if such an analysis here, instead of a direct yes or no. A no The right to vote freely for the candidate were applied to each handicapped indi- answer would have been a very honest of one’s choice is of the essence of a demo- cratic society, and any restrictions on that vidual’s request for accommodations.’’ answer. In fact, I suspect that is what right strike at the heart of representative But, I am especially troubled about his answer is, but he did not have the government. And the right of suffrage can be Judge Alito’s dissent in the Third Cir- courage, in my view, to say that, which denied by a debasement or dilution of the cuit Case of Chittester v. Department I would have respected. I might have weight of a citizen’s vote just as effectively of Community and Economic Develop- disagreed with it, but I would have re- as by wholly prohibiting the free exercise of ment. That case involved an employee spected it. That is troublesome to me. the franchise. who was fired while taking sick leave Finally, I think we should vigorously Yet, in Jenkins v. Manning, Judge and who sought to enforce his rights examine the nominee to see whether he Alito was part of a decision to dismiss under the Family and Medical Leave or she is capable of and committed to a suit brought by African-American Act, which became law in 1993. I was upholding the Constitution of the voters who argued that the district’s the original author of this law which United States and its promise of free- voting system diluted the voting has enabled more than 50 million work- dom and equality for all. Protecting strength of minorities. In that case, ers to take leave for medical reasons or the constitutional rights of all Ameri- the dissenters argued that the decision to care for a child or family member. A cans is perhaps the most fundamental failed to give effect to ‘‘the broad primary objective of the act is to en- duty of a Supreme Court Justice. sweep of the Voting Rights Act.’’ sure that both male and female work- Therefore, I am deeply concerned in his Judge Alito’s long record of opinions ers have access to leave, and that they 1985 memo Judge Alito explained that and dissents in these, and other divided were not punished or discriminated his interest in constitutional law was cases lead me to believe that he has a against because of their family respon- ‘‘motivated in large part by disagree- legal philosophy which lies outside the sibilities. However, Judge Alito found ment with Warren Court decisions, par- mainstream. Several newspapers and that the law was not a valid exercise of ticularly in the areas of criminal pro- scholars provided support for this con- Congressional power to enforce the cedure, the Establishment Clause, and cern. One study conducted by Univer- Equal Protection Clause. He said: reapportionment.’’ sity of Chicago Professor Cass Unlike the Equal Protection Clause, which That is a fairly sophisticated answer Sunstein, found that when there was a the Family Medical Leave Act is said to en- in 1985. Many of these decisions, of conflict between institutions and indi- force, the Family Medical Leave Act does course, compromise the cornerstone of vidual rights, Judge Alito’s dissenting much more than require nondiscriminatory the Supreme Court’s modern jurispru- opinions supported the institutional in- sick leave practices; it creates a substantive dence, in enforcing the fundamental terest over individual rights 84 percent entitlement to sick leave. democratic principle of one person, one of the time. Moreover, 91 percent of The decision reflects a proscriptively vote, in preventing the violation of an Alito’s dissents take positions more narrow conception of what ‘‘equal pro- individual’s privacy by the state—a conservative than his colleagues—in- tection’’ required. Real equality cannot matter that concerns everybody in this cluding those appointed by Presidents be achieved, and the very real effects of country; we see a lot of it going on Bush and Reagan. discrimination cannot be remedied, today—and in ensuring procedural fair- Judge Alito has set an incredibly without meaningful, substantive ac- ness in criminal trials. To whole- high standard for individuals to meet tion. This is precisely why Congress en- heartedly reject this legacy is also to when bringing a claim against the Gov- acted the Family and Medical Leave reject the continued pursuit of the con- ernment or a Corporation. He has re- Act. The Supreme Court recognized stitutional ideals of liberty and equal- peatedly dissented in cases where the this in Nevada Department of Human ity, in my view. majority has ruled in favor of an indi- Resources v. Hibbs. In a 6–3 decision Before the Judiciary Committee, vidual alleging racial or gender dis- authored by Chief Justice Rehnquist, Judge Alito defended himself by saying crimination. In Bray v. Marriott Ho- the Court held that contrary to what he wrote the comments 20 years ago. tels, for example, a housekeeper man- Judge Alito said in Chittester, a work- Twenty years ago, he was well into his ager alleged that she was denied a pro- er can sue a State employer who fired

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I am dis- would honor and protect the individual firmed, as during the hearing Judge turbed that the President has claimed, rights and freedoms enshrined in our Alito continued to reject evidence of for himself, the authority to overrule Constitution as the majority of his discrimination in personal sick leave the will of the Congress in passing its record showed him to be a persuasive even though there is compelling evi- antitorture legislation—legislation advocate for his clients rather than a dence in the legislative history of this which received the overwhelming sup- radical judge out of the mainstream of law. port of congressional Members. This judicial thought. In these cases, the very judges who undermines the separation of powers I regret to say that, having reviewed talked about our nominee as being fair and democratic principles. I am further his judicial record and his responses to and not being an ideologue, in their troubled that in the course of the Judi- the committee, I cannot be convinced majority opinions had very different ciary Committee hearing, Judge Alito that Judge Alito falls within the judi- things to say about their colleague on did not adequately distance himself cial mainstream. His evasiveness in the some very critical cases on which this from the current administration’s be- face of questioning by the committee, Appellate Court Judge reached dif- lief that this theory provides justifica- his established record on the bench of ferent opinions, such as I have cited tion for the NSA to engage in the taking a restrictive view of individual here, as well as in several others that warrantless wirewrapping of U.S. citi- rights, and his inability to explain his came before that circuit. zens in defiance of the Foreign Intel- past comments on executive power all I am also concerned about Judge ligence Surveillance Act, and for the lead me to harbor significant concern. Alito’s ruling regarding the Family detention of U.S. citizens accused of Determining whether to confirm a and Medical Leave Act, which I au- being enemy combatants. nominee to the Supreme Court is never thored. The Family Medical Leave Act Defining permissible boundaries of an easy decision. Whether a nominee is has provided meaningful relief to mil- Presidential power is among the most sufficiently within the mainstream of lions of Americans. Judge Alito would pressing of today’s constitutional ques- judicial thinking is often a question of have made significant changes, if not tions, and will almost inevitably arrive degree. While Judge Alito is clearly in- eliminated the law altogether, a great before the Supreme Court in the years tellectually qualified and legally expe- setback, in my view. The Supreme to come. It is for this reason that rienced, I am not convinced that Judge Court strongly overruled his decision. Judge Alito’ s inability to shed light on Alito’s judicial philosophy will allow Finally, I am troubled that the rights his past comments and his current be- for the faithfulness to the constitu- of privacy which are so deeply valued liefs is so significant. These failures tional rights and freedoms, and the by Americans could be eroded by a Jus- call into question whether Judge Alito protection of equality before the law tice on the bench who does not appre- has sufficiently demonstrated that his we have come to expect from a Su- ciate the importance of these issues. jurisprudential philosophy allows for preme Court Justice. I am alarmed by Judge Alito’s un- the degree of respect for democratic After a review of Judge Alito’s exten- willingness to explain his previous checks and balances, and the protec- sive record, his decisions as a judge on statements on the unitary executive tion of individual rights and freedoms the Third Circuit, and his testimony theory of Presidential power. In a No- that the Constitution—and the public— before the Senate Judiciary Com- vember 2000 speech to the Federalist demands. mittee, I must oppose this nomination. Society, Judge Alito expressed strong A Supreme Court Justice influences I have concluded that Judge Alito’s ju- support for the unitary executive the- the most critical issues facing this and dicial temperament is out of step with ory calling it ‘‘Gospel according to the future generations of Americans. I be- our fundamental constitutional values Office of Legal Counsel’’ referring to lieve that the Court may now be at a and that his confirmation would not be the position he held in the Reagan Jus- pivotal point in which the future direc- in the best interests of the United tice Department. Proponents of this tion of our law is at stake. Judge Alito, States. theory believe that the Constitution if confirmed, will take the seat of Jus- The PRESIDING OFFICER. The Sen- vests in the executive complete control tice Sandra Day O’Connor on the Su- ator’s time has expired. over the administrative and regulatory preme Court. While all Supreme Court Mr. DODD. So, Mr. President, for the branches. Judge Alito’s failure to shed Justices have the same unique obliga- reasons I have stated, I will oppose this any light on his professed support for a tion—to serve as the ultimate guard- nomination. I say this with regret be- powerful, unitary executive is trou- ians of the Constitution, the rule of cause it will only be the fourth occa- bling. In Hamdi v. Rumsfeld, Justice law, and the rights and liberties of sion in 25 years I will have voted O’Connor acknowledged that the execu- every individual citizen—Justice against a nominee for the Supreme tive power must have reasonable lim- O’Connor has long provided a voice of Court. I will do so tomorrow at 11 a.m. its, asserting that ‘‘a state of war is reason and open-mindedness as she has I deeply regret that I didn’t have the not a blank check for the President carried out this weighty responsibility. opportunity to engage in a fuller dis- when it comes to the rights of the Na- With a moderate temperament and ju- cussion. It is somewhat disturbing, tion’s citizens.’’ Judge Alito refused to dicial independence, Justice O’Connor that I was only allocated 20 minutes. comment on O’Connor’s statement, and has often supplied the deciding vote to Because of the constraints on time, instead remarked that ‘‘no person is protect fundamental American rights this is all this Senator can say about a above the law, and that includes the and freedoms. We cannot underesti- lifetime appointment to a coequal President.’’ Unlike Chief Justice Rob- mate how much is at stake in filling branch of Government, a nominee that erts at his confirmation hearing, Judge this critical seat on the Court. will have a huge impact on the course Alito did not identify an affirmative When I spoke on this floor regarding of America in the 21st century. obligation of the courts to block an ex- the nomination of Chief Justice John I yield the floor. ecutive action if the Executive acts un- Roberts, I stated that for those of us The PRESIDING OFFICER. The Sen- constitutionally. Judge Alito’ s answer concerned about keeping America ator from Oklahoma is recognized for fails to adequately explain in any sub- strong, free and just, his confirmation up to 1 hour. stantial way, his views on limitations was no easy matter. However, I ulti- Mr. INHOFE. Mr. President, I say to to executive power. mately concluded that although he was my good friend from Connecticut, I was This failure is of particular signifi- a conservative nominee, Judge Roberts surprised to find out he was not a cance given the current political land- was within the mainstream of judicial member of the conservative caucus. scape. President Bush and his lawyers thinking—in his judicial philosophy, Now I know. But I would agree with adopted an expansive interpretation in his respect for precedent and his belief him insofar as the significance of the their view of executive power, particu- that the Constitution cannot be read as confirmation vote that will take place

VerDate Aug 31 2005 01:15 Jan 31, 2006 Jkt 049060 PO 00000 Frm 00059 Fmt 4637 Sfmt 0634 E:\CR\FM\A30JA6.043 S30JAPT1 ycherry on PROD1PC64 with SENATE S318 CONGRESSIONAL RECORD — SENATE January 30, 2006 tomorrow. There is nothing more sol- tions that he came in with and just ap- where the prospective enemy has bet- emn, nothing more significant that we plied the inflationary rate, it would be ter equipment than we do. have to deal with than confirming that top line, the black line. However, People don’t realize it. When I go judges, whether they are nominated by he didn’t do it. Instead, with his budg- back to Oklahoma, I say: Do you real- Democrats or by Republicans. et, this yellow line is what he re- ize some countries make better fight- However, I respectfully disagree with quested. ing equipment. For instance, five coun- the Senator from Connecticut. I look Fortunately, we in Congress were tries make a better artillery piece than forward to voting for the successful able to get this up to what I see as a the very best one that we have, which confirmation of Judge Alito. I have had green line here. So this is actually is the Paladin. a chance to talk about him. I believe what happened right here. This is what John Jumper said: Our best strike ve- he will be a strict constructionist and was actually appropriated. This would hicles are the F–15 and F–16. The Rus- will do a good job for the United have been a static system. This is what sians are now making the SU–27, the States, specifically for my 20 kids and the President wanted. SU–30s, and are proposing to make the grandkids. What does that mean? It means that SU–35. Those vehicles are better than f during the years he was President, he the best ones we have in terms of decreased spending from the level jammers and radar. NATIONAL SECURITY where it was by $313 billion. If we had I could get more specific in how they Mr. INHOFE. Mr. President, I am not not raised the amount that was in his were better, but they were better. I here, people will be glad to know, to budget, his budget called for a decrease agreed with him at the time and said talk about Judge Alito. I am here as an of $412 billion. We are talking about so and applauded him when he made assignment. Serving on the Senate the difference between the black line the statement that we need to move on Armed Services Committee, as is the and the red line. It means that the with the FA–22 so we can get back and keeper of the chair, I have been there Clinton-Gore administration cut the be competitive again. for quite a number of years. I have budget by 40 percent, reducing it to the People wonder why the liberals and, I taken the assignment of giving a grade lowest percentage of gross national say, the Democrats do not support a as to what President Bush, prior to his product since before World War II. strong national defense. There are State of the Union Message tomorrow The first 2 years of the Clinton ad- some reasons for this. One of the things night, has done in the way of national ministration, I was in the House of we have in this country, which people security and national defense. I am Representatives. I was on the House don’t stop and really think through, is proud to say that I am very proud of Armed Services Committee. I knew the convention system. It is kind of a the job he has done. In doing this, what what he was going to be doing to our miracle. In a living room in Broken I would like to do is break it down into military. I started complaining about Arrow, OK, Republicans all meet and three segments. this during the first 2 years of his ad- they decide what we stand for. We First, I want to talk about the prob- ministration. Then as I saw it taking stand for a strong national defense, we lems this President inherited when he place, we were on the floor at least are pro-life, all that stuff. At the same became President in terms of our na- every week or two talking about what time, across the street you have the tional security; second, the solutions, this President was doing to our mili- Democrats meeting. They are talking the very impressive solutions so far to tary. about gay rights and abortion and all these problems; and third, the chal- When they say the Cold War is over, the things they stand for. They decide lenges he has for the future, for the we don’t need a military anymore, I what delegates go to the county con- next 2 or 3 years. In doing this, I know look wistfully back to the days of the vention. So the most activist of each I will come across as being very par- Cold War. During the Cold War, we side, liberals and conservatives, be- tisan. Quite frankly, when we are deal- knew we had one superpower out there. come the people who end up going to ing with national defense, I am quite It was the Soviet Union. We knew what the conventions. Then they go to the partisan. I think the most important they had. They were predictable. Their district convention, the State conven- thing we have to do here is to keep attitudes were predictable. They rep- tion, and then the national convention. America strong, make sure that we resented a great country, the U.S.S.R. The bottom line is, if any Republican have a strong national defense system. We knew pretty much where we were. wants to run for the Senate or for the I hate to say it, but that becomes a We had a policy that was in place. It House or for a higher position, that partisan issue. However, it is too seri- was a military that stood up to an person has to embrace the philosophy, ous of an issue to try to be diplomatic, Eastern Bloc type of mentality. It was at least partially, that is adopted by so I will not attempt to be diplomatic one that was working quite well. his party in the national convention of tonight. I will be dealing with the During the time of the 1990s, during the Republican Party. It is a conserv- truth. the Clinton drawdown of the military, ative agenda. For the Democratic Winston Churchill said: Truth is in- one particular general comes to mind. I Party, it is liberal agenda. That is a controvertible. Panic may resent it, ig- considered him to be a hero because it long way around the barn, but it kind norance may deride it, malice may de- took courage. It is hard to explain to of explains as to why these Members of stroy it, but there it is. real people, as I go back to Oklahoma, the Senate from the Democratic side First, in dealing with the problems how much courage it takes for someone are not strong in terms of a national that he inherited, I would like to out- to stand up against his own President defense. line seven huge problems that this if he is in the military. These are ca- It is because if you really look at a President inherited when he became reer people. GEN John Jumper, who liberal, they don’t think you need a President. The first is, when he was in- later became the Chief of the Air military to start with. Liberals believe augurated he received a military struc- Force, stood up in 1998 or 1999 and said: that if all countries would stand in a ture that was in total disarray. During This insane drawdown of our military circle and hold hands and unilaterally the Clinton administration in the 1990s, is something we cannot continue. disarm, all threats would go away. I will show you in terms of dollars Not only were we drawing down to al- They don’t say that, but that is what what happened to our system. There most 60 percent, in terms of Army divi- they really think. So we have these was a euphoric attitude everyone had sions, of our tactical airwings, our people running for President on the that somehow the Cold War was over ships were coming down from 600 to Democratic side, and they don’t want and we did not need a military any- 300, but also our modernization pro- to perform in terms of what the needs more. gram. are from a national security stand- This is what the Clinton administra- So General Jumper, with all the point. tion did. If you take this line right credibility that he had—and there is no I said at the outset, there are two here, this is kind of the baseline only one in America more credible than he things unique to America. The other increased by inflation. So by doing is—was able to say that we have a very one is, we are so privileged in this this, we would say if that President serious problem and we now are send- country. If people at home want to had taken the baseline, the appropria- ing our kids out in strike vehicles know how JIM INHOFE, as a Member of

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